Minnesota Mining and Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 4, 1946

68 N.L.R.B. 460 (N.L.R.B. 1946)

In the Matter of MINNESOTA MINING AND MANUFACTURING COMPANY
and INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL No.
36, A. F. OF L.
Case No. 18-R-1319.-Decided June 4, 1946
Messrs. Robert H. Tucker and Lyle H. Fisher, both of St. Paul,
Minn., for the Company.
Messrs. S. Robins and Stanley Korengold, both of Minneapolis , Minn.,
and Vic Johnson, of St. Paul, Minn., for the Union.
Mr. Seymour M. Alpert, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by International Union of
Operating Engineers, Local No. 36, A. F. of L., herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Minnesota Mining and Manufacturing
Company, St. Paul, Minnesota, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Stephen M. Reynolds, Trial Examiner. The hearing was
held at Minneapolis, Minnesota, on April 15, 1946. 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. 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.
' Minnesota Mining Employees Independent Union was served with notice of hearing but
did not appear.
68 N. L. R. B, No. 63.
460
MINNESOTA MINING AND MANUFACTURING COMPANY 461
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Minnesota Mining and Manufacturing Company, a Delaware corpora-
tion, with its principal office and place of business located at St. Paul,
Minnesota, is engaged in the manufacture of abrasive materials, pressure
sensitive tapes, roofing granules, and chemicals. The Company operates
plants in various parts of the United States, including one at St. Paul,
Minnesota, which plant is solely involved in this proceeding. During the
year 1945 the Company purchased raw materials for use at this plant in
an amount exceeding $1,000,000, more than 80 percent of which repre-
sented shipments to the plant from points located outside the State of
Minnesota. During the same period, 95 percent of the finished products
of this plant, valued in excess of $1,000,000, was shipped by the
Company to points outside the State.
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
International Union of Operating Engineers, Local No. 36, is a labor
organization affiliated with the American Federation of Labor, admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of the operating engineers in the
Company's boiler room on the ground that they are supervisors and, as
such, are part of management and not employees within the meaning of
the Act. The question of the status of supervisors under the Act has
been considered in a number of Board2 and Court3 decisions. Both the
Board and the Courts have concurred in holding that supervisors have
a dual aspect under the definitions of "employer" and "employee" con-
= Matter of Sass Manufacturing Company, et al., 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; Matter of The Midland
Steel Products Company, Parish & Bingham Division, 65 N. L. R. B 997; Matter of Jones &
Laughlin Steel Corporation, 66 N. L. R. B. 386.
1 N. L. R. B. v. Armour and Co, 154 F (2d) 570 (C C A 10, Nov 5, 1945), Jones & Laughlin
Steel Corporation v. N. L. R. B, 146 F. (2d)
Kennedy Stationery Company, 113 F. (2d) 667
833 (C. C. A. 5) ;
(C. C. A. 8).
N L. R. B v Skinner &
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained in the Act.4 When he acts in the interest of his employer, a super-
visor is an "employer"; but when he acts in his own interest, as when
he seeks to better the terms and conditions of his employment, he is an
"employee." There is no inconsistency in recognizing such duality of
status. Accordingly, we find that for the purposes of this proceeding the
operating engineers are employees within the meaning of Section 2 (3)
of the Act.
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. THE APPROPRIATE UNIT
As a result of a Board directed election,b the petitioner was certified
as bargaining representative of all boiler room employees at the St. Paul
plant of the Company, excluding, among others, the operating engineers
here involved. The Union now seeks to include these operating engineers
in the boiler room unit it presently represents, or, in the alternative, if the
Board finds them to be supervisory, to establish a separate bargaining
unit of these employees. In support of its primary position, the Union
contends in effect that the duties, powers and responsibilities of these
individuals are typical of operating engineers in the industry, and not
supervisory within the Board's definition of that term.
At the plant's boiler room, there are 29 hourly paid employees. The
usual employee complement includes also 5 operating engineers classified
by the Comapany as "B" foremen. The "B" foremen, or operating engi-
neers, work on three shifts, 4 of them on a swing basis, the fifth man
working regularly on the day shift. The general supervision of the
boiler room and the coordination of its work with that of the rest of the
plant is the responsibility of the superintendent,6 who spends approxi-
mately 85 percent of his time away from the boiler room. The day-to-day
operation of the boiler room is the responsibility of the operating
engineers. They make work schedules, assign particular work to em-
ployees, and supervise and check such work. They can also take discipli-
nary action, such as sending home employees who have violated company
rules, and appear to have the authority to hire and discharge their
subordinates. They attend periodic meetings where management problems
are discussed, and handle the first step in the grievance procedure as to
their subordinates. In addition, the vacation plan of the operating
engineers is that applicable exclusively to company supervisory personnel,
' See footnotes 2 and 3, supra.
55 N. L. R. B. 1251.
" The parties agree that the superintendent should be excluded from any unit found appro-
priate by the Board.
MINNESOTA MINING AND MANUFACTURING COMPANY 463
and their holiday pay and sick benefits are different from those enjoyed
by the rank and file employees.
In view of the foregoing duties, powers and responsibilities of the
operating engineers, we are impelled to the same conclusion we reached
in our previous decision, viz, that these employees are supervisory within
our usual definition of that term.7 We shall therefore deny the Union's
request that the operating engineers be added to the unit of boiler room
employees previously found appropriate.8 However, inasmuch as the
boiler room engineers constitute a distinct homogeneous group, we are
of the opinion that they may function together for collective bargaining
purposes.
With respect to the Company's contention that the operating engineers
should not be permitted to choose a bargaining representative because
they, unlike ordinary supervisory employees, are responsible for the
safety of the entire plant, it is clear that the type of work in which
supervisors are employed is relevant only insofar as it may bear upon
the question of proper grouping for collective bargaining purposes.9
Moreover, we have held, as we do now, that self-organization for collec-
tive bargaining is not incompatible with efficient and faithful discharge
of duty.10
The Company's further contention that the Union should not be
permitted to represent the employees herein because it is affiliated with
a labor organization that represents the rank and file boiler room
employees is similarly without merit. It is clear that the Board has no
power to place limitations on the right of supervisory employees to select
for the purposes of collective bargaining representatives of their own
choice.11
Accordingly, under all the circumstances and on the entire record ii_
the case, we find that the operating engineers employed by the Company
in the boiler room of its St. Paul plant constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
' Matter of Indianapolis Water Company , 48 N. L. R B. 1399, 1402 , Matter of General
Chemical Company, 57 N. L. R B. 524, Matter of Dallas Power & Light Company, 60
N. L. R. B. 1088; Matter of Pacific Mills, 60 N, L. R B. 467.
1 We note that the Company desires that we here reconsider our earlier unit finding and
presently find that the boiler room is not an appropriate unit, but should be merged into the
existing plant -wide unit . It has, however, presented us with no new evidence to support this
claim. Accordingly, no basis appears for altering our prior unit finding.
9 See footnotes 2 and 3, supra.
10 Matter of Drava Corporation, 52 N L. R B 322, 327; Matter of National Fireworks, Inc,
62 N L. R. B. 271; Matter of Chris-Craft Corporation, 66 N L. R B. 230.
11 See Matter of Jones & Laughlin Steel Corporation, supra, Matter of Harrisburg Steel
Corporation, 67 N. L. R. B. 164.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION 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 immedi-
ately preceding the date of the Direction of Election herein, subject to
the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtues of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations 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 representatives
for the purposes of collective bargaining with Minnesota Mining and
Manufacturing Company, St. Paul, Minnesota, 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 Eighteenth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regulations,
among 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 em-
ployees 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 International Union of
Operating Engineers, Local No. 36, A. F. of L., for the purposes of
collective bargaining.
MR GERARD D. REILLY, dissenting :
For the reasons stated in my dissenting opinions in Matter of Jones
& Laughlin Steel Corporation, Vesta-Shannopin Coal Division,12 and
Matter of Packard Motor Car Company,13 I am constrained to dissent
from the majority opinion in this case.
3s 66 N L. R. B. 386.
` i 61 N . L. R. B. 4.