Kawneer Co.

National Labor Relations Board - Board Decisions

Apr 15, 1940

22 N.L.R.B. 995 (N.L.R.B. 1940)

In the Matter Of KAWNEER COMPANY and LOCAL 92, UNITED
AUTOMOBILE WORKERS OF AMERICA, A. F. OF L.
Case No. B-1779.-Decided April 15, 1940
Metal Architectural Fixtures Industry-Investigation of Representatives:
controversy concerning representation of employees: recognition as exclusive
bargaining agency requested by labor organization but refused by employer un-
til proof should be furnished, through a Board election, of former's right thereto-
Unit Appropriate for Collective Bargaining: agreement between employer and
labor organization that unit should comprise all hourly and piece-rate produc-
tion and maintenance employees and that it should exclude foremen, time clerks,
office janitors, time-study men, expediters, and all salaried employees other than
watchmen; Company desired in addition to exclude, but Board at request of
only labor organization involved includes in the unit assistant foremen or super-
visors, 'watchmen, inspectors, firemen, shipping clerks, temporary employees, and
employees of receiving department and stockroom (Leiserson, dissenting in part)
Inclusion of firemen, receiving and shipping clerks, and truck driver or trueker
unjustified since Union did not show that any employees in those groups desired
representation by it-Election Ordered
Mr. Harry N. Casselman, for the Board.
Mr. Charles E. White, of White cP3 White, of Niles, Mich., for the
Company.
Mr. J. L. Busby, of Detroit, Mich., for the Union.
Mr. William Stix, of counsel to the Board.
DECISION
AND
DIRECTION OF- ELECTION
STATEMENT OF THE CASE
On January 24, 1940, 'Local 92, United Automobile Workers of
America, A. F. of L., herein called the Union, filed with the Regional
Director for the Seventh Region (Detroit, Michigan) a petition, and
on March 19, 1940, an amended petition, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Kawneer Company, Niles, Michigan, herein called the Company,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On March 16, 1940, the National Labor
22 N L R B.. No. 74.
995
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board, herein called the Board, acting pursuant to Section
9 (c) of the Act, and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered
the Regional Director to conduct an investigation and provide for an
appropriate hearing upon due notice.
On March 20, 1940, the Regional Director issued a notice of hearing,
dated March 19, 1940, copies of which were duly served upon the
Company and the Union. Pursuant to the notice, a hearing was held
on March 25, 1940, at Niles, Michigan, before Berdon M. Bell, the
Trial Examiner duly designated by the Board. The Board, the Com,
pany, and the Union were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues
was afforded all parties. During the course of the hearing, the Trial
Examiner ruled on a motion and on objections to the admission of the
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. They are hereby
affirmed.
Upon the entire record in the, case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Kawneer Company, a Michigan corporation, operates its principal
plant at Niles, Michigan,' where it is engaged in the manufacture of
store fronts, metal windows, metal doors, architectural metal work,
and commercial metal moldings and parts. In 1939 the Company at
its Niles plant used raw materials-consisting chiefly of aluminum,
bronze, copper, brass, and steel-to the value of approximately
$1,140,000, of which at least 80 to 85 per cent were obtained from
sources outside Michigan. Finished goods to the value of approxi-
mately $2,830,000, about 85 per cent of which were sold and distributed
to points outside Michigan, were produced by the Company during
the same period. At Niles the Company employs 694 persons, includ-
ing office employees.
II. THE LABOR ORGANIZATION INVOLVED
Local 92, United Automobile Workers of America, affiliated with
the American Federation of Labor, is a labor organization which ad-
'The Company also operates a plant at Berkeley , California, which is used in part for
fabricating but principally as a sales distribution warehouse , and has t« o closed plants-
one at Chicago and the other at Chicago Heights , Illinois.
KAWNEER COMPANY 997
mits to membership employees of the Company, including supervisory
employees who do not have the authority to hire or discharge.
III. THE QUESTION CONCERNING REPRESENTATION
On November 28, 1939, the Union, claiming to have been designated
as collective bargaining representative by a majority of the Company's
employees, asked for recognition as exclusive bargaining agent. The
Company at that time and at all times thereafter refused to grant
such recognition until it should be proven by a Board election that
the Union is the exclusive representative of the Company's employees.
We find that a question has arisen concerning the representation of
the Company's employees.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning 'representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade,' traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company and the Union have agreed that the unit should
comprise all hourly and piece-rate production and maintenance em-
ployees and that it should exclude foremen, time clerks,' office jani-
tors, time-study men, expediters, and all salaried employees other
than watchmen. In addition to the employees upon the propriety
of whose exclusion the parties have agreed, the Company seeks to
exclude-while, on the other hand, the Union desires to include-
assistant foremen or supervisors, watchmen, inspectors, firemen, three
shipping clerks, all "temporary" employees, and employees in De-'
partment 84 other than Tom Prater, who is a power trucker. We
shall discuss separately each of the employee classifications in
controversy.
Assistant, foremen or supervisors, who lay out the day's work and
supervise its performance, number about 20 and are paid by the
hour. They can recommend or veto the hiring of employees and
can recommend discharges, but persons are hired and employees
discharged only by the personnel director or the plant manager.
The Company contends that the assistant foremen or supervisors
should be excluded since their authority with respect to hiring and
28 K)33-4 1-N of 22--64
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging is similar to that,of the foremen, whom both the Union
and the Company desire excluded from the unit. These men, how-
ever, differ from the foremen, first, in that all but one of the latter 2
are salaried employees, and secondly, in that they do not exercise
the same degree of authority as the foremen. While both the fore-
men and the assistant foremen or supervisors have authority to
recommend that, persons be hired or discharged, it is through the
foremen that the latter's recommendations are communicated. to the
personnel director or the plant manager. Moreover, representatives
of the Company, as well as of the Union, testified that the assistant
foremen or supervisors are, in substance, "gang leaders."
Inspectors: The Company employs from 20 to 25 inspectors who
examine the products made by other employees and have the au-
thority, if a machine is producing defective articles, to shut it down
until the chief inspector, alone or in conjunction with the plant
manager, has approved the resumption of its operation. The in-
spectors, however, who are hourly paid, do not employ or discharge
workers and there is no evidence that they exercise disciplinary
powers or make reports upon the work of employees which serve
as the basis for disciplinary action. The Company contends, never-
theless, that they "represent the management in an effort to satisfy
customers' demands for quality."
Watchmen: The Company employs on a salary basis a head watch-
man and three regular watchmen whose duty it is to patrol the
property at night and on Saturdays, Sundays, and holidays in order
to prevent theft and fire:
_ • Firemen: Three regular and two substitute firemen are charged
,with maintaining the Company's electric- and steam-power supply
and with the upkeep of the fire-extinguishing system. They are
all hourly paid employees.
Shipping Clerks: In the shipping -department-which includes a
foreman, 2 supervisors, 26 packers, and a truck driver-there are 3
clerks.- These men, all of whom 'are paid by the hour, are Roy
Wagar, who is a billing clerk and who in the absence of the fore-
men takes charge,of the shipping 'and box departments;, Lawrence
Schrader, who assists Wagar in his duties as billing clerk and at
times works as a packer; 3 and DeVerne Asmus, the loading super-
visor, who checks outgoing material after it has been packed and,
when no loading is being done, has "other responsibility."
Department 84, all of the employees of which are hourly paid,
comprises the receiving room, the stockroom, and the window and
2 There are 19 foremen
8 Schrader is described as a packer on an abstract of the Company's pay roll NNInch was
introduced in evidence.
KAWNEER COMPANY 999
door stockroom. In the first of these divisions there- are, in addi-
tion to the power trucker mentioned above, an assistant foreman,4
three hand truckers, and two clerks. The duties of the hand truck-
ers, who unload railway cars and automobile trucks, do not differ
from those of the power trucker upon whose inclusion in the unit
the parties' are agreed. The truckers or other employees weigh the
incoming shipments and the_. receiving-room, clerks -cheek them
against the shippers' invoices. The Company contends that, because
of their checking and weighing duties, these employees represent the
management.
The stockroom comprises an assistant foreman,' a flat-bench super-
visor, four flat workers, three slitters, a welder, and two stock clerks.
The slitters-and presumably the flat workers and the welder-pre-
pare stock for the various production departments in accordance
with requisitions. The stock clerks fill requisitions for material,
which they sometimes deliver, "check out" the requisitions, and
"keep up the inventory." Similar-work in cutting raw material to
specifications, as well as the filling of requisitions, is performed by
two sawyers who, in addition to an assistant foreman,' constitute
the personnel of the window and door stockroom.
"Temporary employees": The Company classifies as "temporary"
63 hourly paid employees who perform the same operations as other
hourly workers but who have not served a 6 months' probationary
period. Customarily 85 per cent of such employees prove satisfac-
tory, and, unless employment is curtailed, are retained after the
termination of their probation, which comprises a longer time than
is necessary for them to learn the jobs to which they are assigned.
It is the Company's practice in making lay-offs to retain those tem-
porary employees who have the longest service records, provided that
their -work has been satisfactory. Furthermore, satisfactory tem-
porary employees who have been laid off are hired in preference to
new employees and, upon reinstatement, receive wages which include
such pay increases as were granted them during -their prior employ-
ment.' Witnesses for the Union, asserted , that,, more. than half of the
temporary employees belong to' that organization:"
The duties of employees in the above categories are such that they
might with propriety either be included in or-excluded from a pro-
duction and maintenance unit. At the request of the only labor
.organization involved, however, it has been our practice to include
4 This employee is designated as foreman on an abstract of the Company's pay roll which
was introduced in evidence, but it is apparent from the entire record that he is an assistant
.foreman.
5 See footnote 4, supra
6 See footnote 4, supra.
7Approximately 9 of the 63 temporary employees had previously, worked for the
Company.
1000 DECISIONS OF NATIONAL' LABOit', RELATIONS BOARD
minor supervisors," temporary employees," and-if the unit is essen-
tially an industrial one-"fringe" groups comparable to those dis-
cussed above.10 Consequently we shall include in the appropriate
unit assistant foremen or supervisors, inspectors, watchmen, firemen,
shipping clerks, employees of Department 84, and temporary
employees.
We find that all hourly and ^ piece-rate production and mainte-
nance employees of the Company and• the watchmen, including as-'
sistant foremen or supervisors, inspectors, firemen, shipping clerks,
employees of Department 84, and temporary employees, but exclud-
ing foremen, time clerks, office janitors, time-study men, expediters,,
and all salaried employees other than watchmen, constitute a unit
appropriate for the purposes- of 'coll'ective bargaining and that said
unit will insure to employees of the Company the full benefit of
their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI, THE DETERMINATION OF REPRESENTATIVES
At the hearing the Union claimed as members a majority of the
employees in the appropriate unit but did not seek to prove such
majority claim. We find that the question concerning representa-
tion which has arisen can best be resolved by an election, by secret
ballot.
The 'Company and the Union stipulated that, if the Board or-
dered an election herein, all employees within the appropriate unit
8 In the following cases certain classes of supervisory employees were included in the
unit although others were excluded • Matter of Kansas Milling Company and Flour, Feed,
Seed, Cereal & Elevator Workers Union, No. 20991, 15 N L R. B 71 (working supervisors
included , others excluded ) ; Matter of Willys Overland Motors, Inc and International
Union, United Automobile Workers of America , Local No 12, 9 N. L. R B 924, 10 N L.
R B 160 ( foremen, foreladies , and assistant foremen included ; department heads , division
superintendents , and general foremen excluded ) ; Matter of Shell Petroleum Corporation
and Oil Workers International Union, Local No 367, 9 N L R B 831 ( group of super-
visors not exercising major supervisory functions included ; others excluded ) ; Matter of
Merrimack Manufacturing Company and American Federation of Labor, at at, 9 N. L
R B 173 ( second hands included , other supervisors excluded ) ; Matter of Richmond
ffosiery Mills, Spinning Plant and Textile Workers Organizing Committee , 8 N L R B.
1073 ( section men included , other supervisors excluded)
9 See Matter of Southern California Gas Company and Utility Workers Organizinq Com,
inittee, Local No. 132, 10 N L R B. 1123 (at the request of only labor organization with
substantial membership, temporary employees who were not allowed to remain in employ
of company more than 6 months were included in unit ) ; Matter of A Sartorius