Clark Equipment Co.

National Labor Relations Board - Board Decisions

Aug 20, 1946

70 N.L.R.B. 168 (N.L.R.B. 1946)

In the Matter of CLARK EQUIPMENT COMPANY , FROST GEAR AND FORGE
DIVISION , EMPLOYER and FOREMAN 'S ASSOCIATION OF AMERICA,
CHAPTER 29, UNAFFILIATED , PETITIONER
Case No. 7-R-°259.-Decided August ,,°L0, 19.46
Beaumont, Smith and Harris, by Mr. Albert E. Meder, of Detroit,
Mich., and Mr. Walter E. Schirmer, of Buchanan, Mich., for the
Employer.
Mr. William Vallanzce, of Detroit, Mich., for the Petitioner.
Mr. Bert Baakinger, of Battle Creek, Mich., for the U. A. W.
Mr. Angelo-J. Fiumara,.of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, hearing in this case was held at Jackson,
Michigan, on July 11, 1946, before Harry N. Casselman, Trial Exami-
ner. The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. At the hearing, the Em-
ployer moved to dismiss the petition on various grounds. The Trial
Examiner referred this motion to the Board. For reasons stated here-
inafter, the motion is hereby denied.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Clark Equipment Company is a Michigan corporation,' operating
several plants in the State of Michigan. We are here concerned solely
with its Frost Gear and Forge Division plant at Jackson, Michigan,
where the Employer manufactures forgings and gears. During its
fiscal year of 1945, the Employer received at the plant from points
outside the State more than $1,000,000 worth of steel, coal, and other
supplies. During the same period, the Employer shipped forgings
and gears, valued in excess of $1,000,000, to consumers outside the
State of Michigan.
70 N. L. R, B., No. 18.
168
CLARK EQUIPMENT COMPANY 163'
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED-
The Petitioner is a labor organization, unaffiliated, claiming-tor
represent certain supervisory employees of the Employer.
United Automobile Workers of America, Local No. 623, herein
called the U. A. W., is a labor organization, affiliated with the Amer-
ican Federation of Labor, claiming to represent certain employees
of the Employer."
III. THE QUESTION CONCERNING REPRESENTATION
The Employer has refused to grant recognition to the Petitioner-
as ,the', exclusive bargaining.representative_ of any of its supervisory
employees.
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. THE APPROPRIATE UNIT; TIIE DETERMINATION OF REPRESENTATIVES
The Petitioner urges as appropriate a unit of supervisory em-
ployees consisting of all general foremen, foremen, assistant fore-
men, assistant to the production manager,2 the master mechanic,
special assignment men, and comparable supervisors by whatever
title designated, in all departments of the Employer, excluding the
manager of manufacturing, superintendents, assistant superintend-
ents , supervisory time clerks, timestudy men, production clerks,
watchmen, and tool design personnel, and supervisory employees in
the laboratory, engineering, sales, purchasing, planning, industrial
relations, and_employment and accounting departments.
The Employer objects to the appropriateness of the foregoing
unit upon the grounds that : (1) the supervisors herein are a part
of management, not comparable to industrial "traffic cops" discussed
in prior Board decisions involving supervisory employees, and there-
fore cannot be classified as "employees" within the meaning of Sec-
tion 2 (3) of the Act; (2) each of the three levels of foremen sought
herein should be established as separate bargaining units; and (3)
the establishment of either the Petitioner's proposed unit or three
separate units would not effectuate the policies of the Act. Without
' The U. A. W. participated at the hearing for the limited purpose of protecting the
interests of the production and maintenance employees of the . employer whom it allegedly
represents
2 James Milley.
170 '- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
waiving its position that no unit of supervisors is appropriate, the
Employer further contends that, in any event, the assistant to the
production, manager, the master mechanic, and the special assign-
ment men should be excluded from the requested unit. ,
The status of foremen under the Act has been considered in a
number of Board 'and court decisions. Both the Board a and the
-courts' have held that, in relation to their employer, foremen are
"employees" within the meaning of the Act. Accordingly, we find
that the Employer's first objection as a reason for dismissing the
instant petition is without merit, and that the foremen are employees
within the meaning of Section 2 (3) of the Act. Moreover, upon con-
sideration of the entire record, we are satisfied that the employees
herein are readily distinguishable from the higher level policy-mak-
ing officials of the-Employer 5 and are not such an integral part of
management that they may not constitute a separate group for the
purposes of'collective bargaining.'
With regard to the Employer's claim that a separate unit should
be established for each level of foremen if any supervisors' unit is
found appropriate, the record shows that the levels of supervision
below the assistant superintendents consist of, in descending order,
13'general foremen, 44 foremen, and 19 assistant foremen. The gen-
eral foreman, who is responsible to the assistant superintendent or
superintendent for the operation of his department, directs the ac-
tivities of the foreman or assistant foreman in more than one de-
partment on one shift or in one or more departments on all shifts.
The foreman, who is- responsible to the general foreman, assistant
-superintendent, or, superintendent for the operation of his _ depart-
ment, directs operations in a department, and is responsible for the
personnel, product, equipment, and care of property on one or more
shifts. The assistant foreman, who is supervised by his foreman or
I
3 Matter of Packard Motor Car Company, 61 N. L. It. B 4, and 64 N. L R. B. 1212;
Matter of L. A. Young Spring & Wire Corporation, 65 N. L R B. 298; Matter of Simmons
Company, 65 N. L. It. B. 984; Matter of The Midland Steel Products Company, Parish d
Bingham Division, 65 N. L. It. B.' 997; Matter of Kelsey-Hayes Wheel Company, 66
N. L. R. B. 570.
N. L. R B v Armour and Co., 154 F (2d) 570 (C C. A 10) ; Jones & Laughlin
Steel Corporation v. N L R. B, 146 F (2d) 833 (C C A. 5) , N. L R B v Skinner &
Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8).
5 Although the general foremen, foremen, and assistant foremen maybe consulted on
matters concerning company policy, it is undisputed that the Employer's policy-making
officials comprise the manager of manufacturing, superintendents, and assistant
superintendents
e With respect to the Employer's third objection, which was also made in support of
its motion to dismiss the petition, it'cannot be claimed that a unit or units of supervisory
employees would not effectuate the policies of the Act. As we stated in the L. A. Young
Spring d Wire Corporation case (65 N. L. R B. 298), in considering a similar objection.
the Act was intended to encourage the practice of collective bargaining as a means of
settling labor disputes by peaceful means rather than by strife, and that this policy was as
applicable to labor disputes involving supervisory employees as to those involving rank
ahd file employees.
CLARK EQUIPMENT COMPANY 17 T_
general foreman, sets up jobs, trains workers, and is in charge of a,
specific group of operations.
The record discloses, however, that these three classes of fore-
men fall-naturally into two groups separated by general differences=
in their positions and functions. Thus, the' general foremen have-
supervisory duties over the foremen and assistant foremen, with
normally no direct supervision over the rank and file production.
and maintenance employees. Practically all such supervision is un-
dertaken by the foremen and assistant foremen. It is clear that the-
different levels of foremen involved here generally enjoy similar
working conditions, and that there exists a sufficient community of
interest among them to justify the finding of a single appropriate-
unit. The fact,'however, that the general foremen constitute a small
minority of the entire foremen's group and that they have authority-
more closely aligned to higher levels of supervision, makes this -situ-
ation analogous to recent cases 7 wherein the Board permitted such:
higher supervisors to vote separately as to whether or not they de-
sired to be included in the same unit as 'the lower ranks of super-
visors. We shall, therefore, permit the general foremen the oppor-
tunity by separate voting to express their desire in this matter.
Accordingly, we shall make no final -unit determination at this time
pending the elections hereinafter ordered. In the event the em-
ployees in the voting groups described below, voting separately,.
select the Petitioner, they shall together constitute a single appro-
priate unit. - -
In its final-objection, the Employer specifically objects to the fol-
lowing employees sought to be included by the Petitioner :
Assistant to the production manager: This employee works ex-
clusively on experimental jobs. Inasmuch as he has no employees
under him, we shall exclude him.
Master mechanic: The record reveals that the supervisory authority
of this'employee is analogous to that of an assistant superintendent,
whom the Petitioner would exclude. We shall therefore exclude him.
Special assignment men: There are two special assignment men who
are, in effect, manufacturing consultants. Inasmuch as they do not
have any employees under their supervision, we shall exclude them.
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 Elections herein, subject-to the limitations and
additions set forth in the Direction : -
(1) All general foremen.
4 Matter of Midland Steel Products Company, supra; and Matter of Kelsey-Hayes
Wheel Company , supra. '
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) All foremen, assistant foremen, and comparable supervisors by
whatever title designated in all departments, excluding the assistant
to the production manager, the master mechanic, special assignment
men, the manager of manufacturing, superintendents, assistant super-
intendents, supervisory .time clerks, timestudy men, production clerks,
watchmen, and tool design personnel, and supervisory employees in
the laboratory and accounting departments.
As stated above, there will be no final determination-of the appro-
piiate unit pending the results of the elections.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Clark Equipment Company,
Frost Gear and Forge Division, Jackson, Michigan, separate elections
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 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 described 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
or 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 elections, to determine in each of the voting.groups whether or
not they desire to be represented by Foreman's Association of America,
Chapter 29, Unaffiliated, for the purposes of collective bargaining.
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 general foremen.
MR. GERARD D. REILLY, concurring separately :
My position in this case is the' salve as that expressed in my con-
curring opinions in The Midland Steel Products Company and West-
inghouse Electric Corporation cases .8 As in those cases, I would direct
no election in this matter since all the persons who are the subject of
8Matter of The Midland Steel Products Company ( supra ) ; Matter of Westinghouse
Electric Corporation ( East Springfield Works ), 66 N. L. R. B 1297.
CLARK EQUIPMENT COMPANY 173
this petition are supervisors. My views on this question, as expressed
in the dissenting opinions in the Packard Motor case 9 and the Jones d
Laughlin case,10 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 general foremen should be
balloted separately so as to ascertain whether or not they desire to
be in the same bargaining unit which includes the foremen. There is
sufficient evidence in the record to indicate that the duties and re-
sponsibilities of the general foremen are distinguishable from those
of the foremen.
0-Matter of Packard Motor Car Company, 61 N. L. R. B. 4.
"Matter of Jones & Laughlin Steel Corporation, Vesta-Shannoptin Coal Division, 66
N L R. B, 386.