American Locomotive Co.

National Labor Relations Board - Board DecisionsMay 3, 1946

67 N.L.R.B. 1123 (N.L.R.B. 1946)

In the Matter of AMERICAN LOCOMOTIVE COMPANY and UNITED SUPERVISORY EMPLOYEES , LIU No. 1440, CIO Case No..2K 5650.-Decided May 3, 1946 Hardy, Staneliffe ct Hardy, by Messrs . John J. Farrell and Edward G. Werner, both of New York City , for the Company. Witt eb Cammer , by Messrs. Abraham Leven, John J. Maumille, Harry E. Jones , and Daniel P. Sheehan, all of New York City , for the Union. Mr. Emil C. Farkas, of counsel to the Board. DECISION AN I) DIRECT ION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by the United Supervisory Employees, LIU No. 1440, CIO, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of the American Locomotive Company of Schenectady, New York, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Jack Davis, Trial Examiner. The hearing was held at Schenectady, New York, on various dates between September 20, 1945, and October 19, 1945. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard , to examine and cross -examine witnesses , and to introduce evidence bearing on the issues. At the hearing, the Company moved to dismiss the petition on the following grounds: ( a) that supervisory personnel are not em- ployees within the meaning of the National Labor Relations Act; (2) that they do not constitute an appropriate unit for collective bargaining ; ( c) that the Union is affiliated with another organization representing rank and file employees of the same Company, and there- fore, cannot properly represent supervisors at the same time; and (d) that the Union is not a labor organization within the meaning of the National Labor Relations Act. The Trial Examiner referred this motion to the Board . For reasons indicated hereinafter , the motion is hereby denied. The Company's 07 N. L . R. B. No. 145. 1123 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request for oral argument is denied. All parties were afforded oppor- tunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY American Locomotive Company is a New York corporation having; plants at Schenectady, New York; Dunkirk, New York; Auburn, New York; Hudson Falls, New York; Latrobe, Pennsylvania; Richmond, Virginia; Chicago Heights, Illinois; and two separate plants in the Dominion of Canada. We are concerned in this case with the plant at Schenectady. The Company is engaged in the manufacture of Diesel and steam locomotives. During the past fiscal year, raw materials used at the Schenectady plant were valued in excess of $100,000, of which 80 percent originated outside the S. ate of New York. The principal raw materials used were iron and steel. During the same period, the Company manufactured, produced, and delivered in excess of $100,- 000, in finished products; of these finished products, more than 50 percent was shipped from the Schenectady plant to points outside the State of New York. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Supervisory Employees, Local Industrial Union No. 1440, CIO, is a labor organization admitting supervisory employees of the Company to membership.' III. THE QUESTION CONCERNING REPRESENTATION On May 14, 1945, the Union requested recognition as collective bar- gaining representative of the Company's supervisory employees. By letter dated May 21, 1946, the Company refused to accord recognition. The Company moved to dismiss the petition on the ground that supervisory employees are not employees within the meaning of the Act. i In its motion to dismiss the petition , the Company contends that the Union is not a labor organization within the meaning of the Act The term "labor organization" under the provisions of Section 2 (5) of the Act, means, "any organization of any kind, or any o.gency or employee representation committee or plan , in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances , labor disputes , wages, rates of pay, hours of employment, or conditions of work." The Union is clearly within the scope of this definition. AMERICAN LOCOMOTIVE COMPANY 1125 In recent cases 2 the Board has given full consideration to the ques- tion raised by the Company in its motion. We find, in accordance with our decisions in those cases, that the supervisory personnel in- volved in the present proceeding 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 em- ployees in the unit hereinafter found appropriate .3 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. TIIE APPROPRIATE UNIT The Union seeks a unit of all supervisory production personnel at the Schenectady plant below the grade of general foreman, including department foremen, division foremen, and assistant foremen, chief shop clerks, supervisors of maintenance, clerical groups, plant pro- tection and safety, fire wardens, guards, power plant, engineering laboratory, small tool, tool and jig designers, and pattern shop supervisors. The Company objects to any unit of supervisory personnel con- tending that the present case is distinguishable from the Packard case4 which involved a mass production. industry. In the Goodrich 8 and Young 8 cases, which reaffirmed the finding of the Packard case that a unit of foremen was appropriate, a majority of the Board summarized its position in supervisory cases stating that the type of industry in which foremen or supervisors are employed is not material; that the nature of the duties and responsibilities of such personnel is relevant only to the extent that it may have a bearing upon the question of proper grouping for purposes of collective bar- gaining; and that the purpose of the Act is to encourage the practice of collective bargaining as a means of settling labor disputes and this purpose is as applicable to labor disputes involving foremen as to those pertaining to rank and file employees. Accordingly, we find that this 2 Matter O f S088 Manufacturing Company, et at , 56 N . L. R. B. 348 ; 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 R B. 298 , Matter of The B. F. Goodrich Company, 65 N. L R . B. 294 ; Matter of Simmons Company , 65 N. L . R. B. 984 ; Mattter of The Mid- land Steel Products Company, 65 N. L. R B . 997 ; Matter of Jones it Laughlin Steel Corpo- ration, Vesta -Shannopin Coal Division, 66 N. L. R. B 386. ' The Field Examiner reported that the Union submitted 165 application cards, that the names on 135 of the cards appeared on the Company 's pay roll of September 19, 1945 There are approximately 302 employees in the unit which the Union claims is appropriate. 4 Matter of Packard Motor Car Company , 61 N. L . R. B. 4; 64 N . L. R. B. 1212. 5 Matter of The B. F. Goodrich Company , 65 N. L . R B 294. 4 Matter of L. A. Young Spring it Wire Corporation, 65 N. L It . B. 298. 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argument of the Company does not afford a proper basis for dismissal of the petition. The Company argues further in support of its motion to dismiss the petition, that the Union is not an independent labor organization but is affiliated with and controlled by the CIO, whose affiliate, the United Steelworkers of America, represents the rank and file employees of the Company. The determination of this question was the principal issue in the recent Jones cb Laughlin case,, in which a majority of the Board held that it has no power to place any limitation on the right of foremen to bargain collectively through representatives of their own choice solely because the Union happens to be an affiliate of the labor organization which also represents the rank and file employees. It is our opinion, therefore, that this contention is without merit. The Company asserts that the proposed unit is inappropriate because it includes different levels of supervision. It is in accord with the Union's position on all supervisors to be excluded in the event that the Board finds a unit composed of supervisory personnel appro- priate, but it maintains that chief shop clerks, supervisors of inspectors, and employment interviewers should also be excluded from the unit. The Company's plant at Schenectady consists of approximately 25 separate buildings geographically segregated; all on the west side are referred to as the West Side Plant, and all on the east side are referred to as the East Side Plant. -The production of locomotives, steam and diesel, is distributed throughout the entire plant with each department or shop fabricating or machining a specific phase or part. For ex- ample, the foundry casts all iron castings, such as cylinders; the ham- mer shop makes all large forging, such as locomotive rods and axles; the tank shop fabricates the tank; the wheel shop produces wheels and finishes axles; the jacket shop applies the jacket to the locomotive boiler; the truck shop machines castings and fabricates the truck and tender frames and the tender complete; the bolt room supplies all bolts, etc. All these parts go onto the erecting floor where the locomotive is completed. Most, if not all, of the locomotives are built and pro- duced in accordance with plans, specifications, and drawings furnished by the customer. Each order may contain 2 or 3 different types of locomotives so that in a finished order of 10 locomotives, the operations involved have not necessarily been the same. The Company's over-all policy on operations and management is determined by the directors and officials in New York City. The Schenectady organization is composed of the plant manager at the top, with an assistant manager, then followed by a general superin- tendent. From there, the organization branches off into three distinct 'Matter of Jones & Laughlin Steel Corporation, Vesta-Shannop:n Coal Division, 66 N L R,B 386 AMERICAN LOCOMOTIVE COMPANY 1127 groups each headed by a superintendent. The first is composed of west side shops and facilities; the second is composed of east side shops and facilities; the third is superintendent-coordinator who coordinates activities in both sides of the plant. A fourth superin- tendent heads up the Diesel engine division. Each of these divisions has a staff of assistant superintendents delegated to supervise activities in every respect in the production effort in a certain number of shops, the number being governed by the amount of production and the work turned out. Under the jurisdiction of the assistant superintendents, again depending upon the amount of work and number of men employed, is the general foreman who stands at the top of the shop organization. There follows a lower level of supervision consisting of approxi- mately 43 department foremen, 53 division foremen, and 156 assistant foremen, all of whom are under the authority of the general foreman and are in the unit which the Union claims. Department foremen are in direct supervision of a specific shop. A department foreman reports to the general foreman, assistant super- intendent or superintendent, depending upon the organizational set- up of the particular department. Division foremen are in charge of departmental divisions which cover specific phases of manufacturing or group operations. They have the responsibility of assisting the general and departmental foremen in the operation of the shop. Assistant foremen, similarly, have the responsibility of a division or departmental division or specific phase or section of a shop, their function being similar to division foremen. They may report to division foremen, or department foremen where there is no division due to the limited scope of the operation. The record discloses that all are responsible for the maintenance of production schedules, for the maintenance of amicable labor-man- agement relations, for the processing of grievances in the initial stages, and the general good housekeeping of their department. Substan- tially all such foremen and supervisory personnel are paid a salary plus an incentive rate, there being a definite overlapping of wage rates among departmental, division, and assistant foremen." They enjoy similar privileges and advantages with respect to vacations, sick leave, pensions and separation pay. It appears further that authority of the foremen in this lower level group, over subordinate personnel, is actu- ally limited to making recommendations to higher management. Actual Pay Rates : Department Foremen_ ___________________________ High $472. 00-Low $304. 75 Division Foremen ________________________________ High $399. 00-Low $270. 00 Assistant Foremen_ ________________------------------------------- High $394 . 00-Low $281. 00 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are of the opinion that the various levels of supervisory foremen in question are essentially alike and that, contrary to the Company's contention, there is such community of interest between them that they should all comprise a single bargaining unit. There remains for consideration the disposition of certain fringe groups which the Union desires to include in the unit and to whose inclusion the Company objects. Chief Shop Clerks These employees supervise the accounting staff in the shop offices adjacent or near the foremen's offices. Their work takes them out on the production floor where they often confer with the foremen and where they work in close collaboration with them. In the West- inghouse case,9 we decided that in grouping various functional classi- fications of supervisors for bargaining purposes, we would adhere to the patterns which this Board has generally approved for rank and file employees. In conformity with that policy we shall include the chief shop clerks because they appear to have the characteristics ,of "factory clericals" such as we regularly group with production and maintenance workers in the rank and file level 10 in any case where the classification is in dispute. We are aware that the subordi- nates of these shop clerk supervisors are represented by the Union's co-affiliate , Local 3180, as part of the clerical employee's unit, but we do not regard this circumstance as controlling, particularly in view of the absence at the present time, of any organization for bar- gaining purposes among other clerical supervisors. Supervisors of Inspectors The duties of the supervisors of inspectors are similar to those of assistant foremen. They are assigned to subdivisions of units lo- cated in various parts of the plant where they spend approximately 30 percent of their time in actual inspection. We shall include them in the unit. Employment Interviewers The interviewers work in the personnel department under the juris- diction of the supervisor of employment. It appears from the record that they have no subordinates and are not supervisors as we custo- marily define them. We shall, therefore, exclude them from the unit. We find that all supervisory production personnel at the Company's Schenectady plant below the grade of general foremen, including department foremen, division foremen, assistant foremen , chief shop 9 Matter of Westinghouse Electric Corporation (East Springfield Works), 66 N. L. R. B. 1297. 10 Matter of Goodman Manufacturing Company, 58 N L. R B . 531; Matter of Kearney d Trecker Corporation, 60 N. L. it. B 148, Matter of Douglas Aircraft Company, Inc, 60 N. L R. B. 876 AMERICAN LOCOMOTIVE COMPANY 1129 clerks, and supervisors of inspectors, but excluding employment inter- viewers. maintenance and power plant supervisors, plant protection and safety, fire wardens and guard supervisors. office clerical super- visors, engineering, small tool, tool and jig design and physical lab- oratory supervisor and pattern shop supervisors," constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMIN ATION 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 Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regula- tions-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 Locomotive Coin- pany, Schenectady, New York, 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 Second Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, See- ions 10 and 11, of said Rules and Regulations, 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 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 election, to determine whether or not they desire to be represented by United Supervisory Employees, LIU No. 1440, CIO, for the purposes of col- lective bargaining. 11 The pattern makers In the plant are represented in a separate unit affiliated with another labor organization, not clearly described in the record, but presumably the Pattern Makers' League of America The facts indicate that the Union does not desire to represent the supervisors of the pattern shop . The Company is in accord with this position 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. GERARD D. REILLY , dissenting : For the reasons expressed in my dissenting opinion in Matter of Jones c6 Laughlin Steel Corporation, 66 N. L. R. B. 386, I am com- pelled to disagree with the majority decision. I am of the opinion that the views urged in that dissent apply with equal force to this situation.