American Brake Shoe Co.

National Labor Relations Board - Board Decisions

Apr 9, 1946

67 N.L.R.B. 169 (N.L.R.B. 1946)

In the Matter of AMERICAN BRAKEBLOK, DIVISION OF AMERICAN BRAKE
SHOE COMPANY and FOREMEN'S ASSOCIATION OF AMERICA, CHAPTER
#174
Case No. 7-R-2119.-Decided April 9, 1946
1VITiston, Stra ,un, and Shaw , by Mr. Neal J. McAuliffe , of Chicago,
Ill., and Mr. F. H. Smith, of Detroit, Mich., for the Company.
Messrs. W. Allen Nelson and Carl Brown , of Detroit . Mich., for the
Union.
M,. Jaiae, Zett, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Foremen's Association of America,
Chapter #174, herein called the Union, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of American Brakeblok, Division of American Brake Shoe Company,
Detroit, Michigan, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Sylvester J. Pheney, Trial Examiner. The hearing was held at
Detroit, Michigan, on October 16, 1945. The Company and the Union
appeared and participated. All parties were afforded full oppor-
tunity 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 opportunity to file briefs
with the Board. At the hearing the Company moved to dismiss the
petition for lack of jurisdiction. The Trial Examiner referred this
motion to the Board, and for reasons stated hereinafter, the motion
is denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF TIIE COMPANY
American Brakeblok is a division of American Brake Shoe Com-
pany, a Delaware corporation with its principal office at 230 Park
67 N. L. R. B., No 25.
169
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Avenue, New York City. This particular division has been located
in Michigan since January 1, 1928, and operates a plant at 4600
Merritt Avenue, Detroit, a warehouse at Vannoy, and the Michigan
Central Railway Tracks at Wayne. It employs at its plant and ware-
house, the only operations with which we are here concerned, about 600
persons. The division is a parts manufacturer of transportation
equipment, including automotive brake lining materials, heavy duty
friction blocks, and bearings and wheels of laminated plastic. The
yearly value of raw materials purchased exceeds $1,000,000, 75 percent
of which is purchased outside the State of Michigan. The Company's
finished products are in excess of $1,000,000 in value annually, ap-
proximately 50 percent of which is shipped out of the State of
Michigan.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Foremen's Association of America, Chapter #174, is a labor organi-
zation, unaffiliated, admitting to membership supervisory employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 25, 1945, the Union informed the Company that it repre-
sented a majority of the Company's supervisory employees and
requested that the Company bargain collectively with it. At a con-
ference between the parties within a few days thereafter, the Com-
pany declined to recognize the Union as the collective bargaining agent
of its supervisory employees.
The Company argues that its supervisors are part of management,
are not "workers," and therefore, are not employees within the mean-
ing of the Act. This contention has been made on numerous occasions,
painstakingly analyzed, extensively answered and rejected in a series
of Court and Board decisions.' We find that, for the purposes of this
proceeding, the supervisors herein considered are employees within
the meaning of Section 2 (3) of the Act.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.2
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.
'Matter of The Midland Steel Products Company, Parish ii Binghant Division, 65
N. L It. B 997, and cases cited therein
Z The Field Examiner reported that the Union submitted 19 membership and authoriza-
tion cards bearing apparently genuine, original signatures. Testimony at the hearing
disclosed that there are approximately 25 employees in the appropriate unit.
AMERICAN BRAKE SHOE COMPANY 171
IV. THE APPROPRIATE UNIT
The Union seeks a unit of department heads,3 foremen, and assist-
ant foremen in the warehouse, production, inspection, maintenance,
and power divisions, excluding the scientific, scheduling, plant pro-
tection and clerical divisions. The Company contends that any unit
of its supervisors is inappropriate and declines to take any stand on the
composition of the unit.
The Company in its brief and at the hearing contended that its
supervisors are not "traffic cop" foremen,6 but are, rather, a vital part
of management and therefore outside the protection of the Act. .In
attempting to distinguish its supervisors from those in issue in the
Packard case, the Company contends that its foremen have power to
(1) grade probationers for purposes of permanent employment, (2)
discharge, (3) discipline through a temporary lay-off in conformity
with company rules, (4) grant leave of absence, (5) reclassify per-
manent employees, and (6) formulate company policy through partic-
ipation in foremen's, tool, and safety meetings.
At the hearing the Company's president and superintendent testified
generally in support of these contentions, asserting that the Company
operates its business in accordance with the principles of "Bottom-Up
Management." 5 Even these witnesses, however, admitted that the
recommendations of the foremen in the situations enumerated above
must await final disposition by higher authorities. The Company's
general contention that its foremen are part of top management was
to a large extent discredited by the detailed and persuasive testimony
of three of the foremen themselves.6 In any event, the issues mooted
by these opposing witnesses are immaterial, for as we held in the re-
3 Until shortly prior to the hearing, department heads were known as general foremen
and at the hearing all three grades of supervisors were generally referred to as "foremen."
The reference is to characterization found in Matter of Packard Motor Car Company,
61 N L R. B. 4, and 64 N L R. B. 1212.
' This system of management is one in which ideas from the bottom are encouraged
and given full opportunity to infiltrate the upper reaches of the management hierarchy,
and it is sufficiently unique to have rated recognition and study by the Harvard School
of Business
9 L E. Bond, head of the Press Department and a foreman for his 17 years of con-
tinuous service with the Company , was the Union ' s principal witness at the hearing.
He testified , inter alia , that the Company ' s management did not always support foremen
in their recommendations of discipline and discharge Among the episodes described in
his testimony were the following On one occasion , he was reprimanded by the super-
intendent for laying off a rank and file employee in accordance with company rules but
without informing the superintendent On another occasion , he laid off a man who re-
turned to his job one -half hour later under authority of the personnel office. On one leave
of absence application, Bond noted that he could not spare the applicant who, however,
obtained his leave of absence . Thereafter , Bond unconditionally initialed leave of absence
apuhcations. Another foreman testified that some of his attempts to discipline employees
were frustrated by the superintendent. New employees who must serve a probationary
period of 60 dais are presumably graded by the foremen with the aid of an elaborate
grading schedule Bond testified, however, that this schedule was never used. Another
foreman testified that he did not grade probationers Two foremen, present during Bond's
testimony, testified briefly, adopted, and did not in any way qualify Bond's testimony.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cent Young 7 and Goodrich 8 cases, the responsibilities , duties, and
authority of these employees are relevant only to the issue of proper
grouping . Inasmuch as foremen are employees within the meaning
of Section 2 (3) of the Act, they are entitled to be placed in some
appropriate unit under Section 9 (b).
The group requested by the Union in this case comprises all super-
visors in the grades of "foreman department head," 9 foreman and
assistant foreman who perform production, maintenance , inspection,
and shipping and receiving functions. There are 11 department
heads, each of whom is in immediate charge of the operations of a
single department, and responsible to the superintendent of produc-
tion,10 who has over-all supervision of the 11 departments. Under
the department heads in 6 departments are 16 foremen and assistant
foremen ,' all of whom act as assistants to the department heads. All
of these supervisors are salaried employees who have identical privi-
leges regarding sick leave, time off, vacations, and the like. The de-
partment heads have greater authority than the foremen and the
assistant foremen, regarding the recommending or effecting of hire,
discharge, or discipline of rank and file employees, but the record
indicates that they do not recommend the discharge or discipline of
foremen or assistant foremen." The Company's rank and file em-
ployees are represented by United Automobile, Aircraft and Agri-
cultural Implement Workers of America, Local No. 174, U. A. W.,
C. I. 0.12 Under the grievance procedure established in the contract
between the Company and that union, the department heads and their
subordinate supervisors deal with aggrieved employees or shop stew-
ards only in the initial stage, before a grievance is formally stated in
writing and referred to the superintendent of production. We con-
clude, in the light of these facts and the entire record, that the super-
visory employees whom the Union desires to represent constitute a
homogeneous group, appropriate for bargaining.
We find that, all department heads, foremen, and assistant fore-
men in the Company's warehouse, production, inspection, maintenance,
and power divisions but excluding the scientific, scheduling, plant
protection, and clerical divisions, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
7 Matter of L A Young Sprang d Wire Corporation , 65 N. L R B 298.
8 Matter of The B F Goodrich Company, 65 N. L. R B. 294.
9 See footnote 3, supra
10 The department heads in charge of the maintenance and construction , and the power
departments are directly responsible to the plant engineer and his assistant , who, in
turn, are responsible to the superintendent of production.
11 On occasion, the department head will recommend wage increases for the foremen
and assistant foremen upon their request , and at times , will recommend the promotion
of a rank and file worker to the position of assistant foreman
12 By mere coincidence the number of the Foremen 's Chapter and of the U. A. W. Local
are identical
AMERICAN BRAKE SHOE COMPANY
V. THE DETERMINATION OF REPRESENTATIVES
173
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees 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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations 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 American Brake-
blok, Division of American Brake Shoe Company, 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 Re-
lations Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among the employees in the unit found appro-
priate 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 re-
instated prior to the date of the election, to determine whether or not
they desire to be represented by Foremen's Association of America,
Chapter #174, for the purposes of collective bargaining.
MR. GERARD D. REILLY, dissenting:
For the reasons stated in my dissenting opinion in Matter of Packard
Motor Car Company,13 I am constrained to disagree with the majority
opinion.
u61N L. R. B 4, and 64 N . L. R. B. 1212