Packard Motor Car Co.

National Labor Relations Board - Board Decisions

Dec 6, 1945

64 N.L.R.B. 1212 (N.L.R.B. 1945)

In the Matter of PACKARD MOTOR CAR COMPANY and FOREMAN'S
ASSOCIATION OF AMERICA
Case No. 7-C-1452.-Decided December 6, 194
DECISION
AND
ORDER
On July 18, 1P45, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. No request for oral
argument before the Board at Washington, D. C., was made by any
of the parties, and none was held. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Intermediate Report, the respondent's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, save insofar as
the recommendations are modified in our Order set forth below.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Packard Motor Car Com-
pany, Detroit, Michigan, and its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a.) Refusing to bargain collectively with Foreman's Association of
America as the exclusive representative of all general foremen, f ore-
men, assistant foremen, and special assignment men employed by the
respondent at its plants in Detroit, Michigan;
64 N. L. R. B., No. 204.
1212
PACKARD MOTOR CAR COMPANY 1213
(b) Engaging in any like or related acts or conduct interfering with,
restraining , or coercing its supervisory employees in the exercise of
the right to self -organization , to form , join, assist , or bargain collec-
tively through Foremen's Association of America, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Foremen's Association
of America as the exclusive representative of all general foremen, fore-
men, assistant foremen, and special assignment men employed by the
respondent at its plants in Detroit, Michigan, in respect to rates of pay,
wages, hours of employment, and other conditions of employment;
(b) Post at its plants in Detroit, Michigan, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered , defaced, or covered by any other material; and
(c) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
C i [AIRMAN PAUL M. HERZOG, concurring:'
The issues in this case cannot be analyzed in terms of black and
white. They present a study in grey. Both company and union
present their arguments in good faith; no one can be wholly right
or wholly wrong in a matter of this sort. But the Board remains
faced with the responsibility of deciding which is nearer right, in
the light of the announced policies of the Act.
Although there has sometimes been a tendency to assume ' that
the issue before us is whether foremen should or should not join
unions, that assumption misconceives the Board's function. We are
faced, instead, with the narrower question of whether, granting
that many foremen have now decided that "'the necessities of the
situation" 2 dictate that they seek to bargain through an unaffiliated
I Not having been a Member of the Board when the representation case was heard and
decided , I have thought it only proper to set forth these views , after examining the
record, the briefs and the minutes of oral argument in that earlier proceeding . Matter of
Packard Motor Car Company , 61 N. L . R. B 4, decided March 26. 1945 Concurrence here
may be taken as agreement with the representation decision , although I might not have
joined in every sentence or every metaphor I join fully with Mr. Houston in the present
order , believing that this company should bargain with the union selected by its foremen
IN. L R B . v. Jones it Loughlin Steel Corporation , 301 U S 1, 33
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union, the Act affords them access to the orderly administrative
machinery that is concededly available to rank-and-file employees.
I think that it does.
The company asserts that its supervisory employees are not "em-
ployees" at all, but "employers." 3 To the extent that foremen may
sometimes speak for or bind a respondent in dealing with their sub-
ordinates, because then "acting in the interest of an employer,"
they are "employers" within the meaning of the Act. Here, how-
ever, we are not concerned with foremen's relations with their sub-
ordinates, but with their own status vis-a-vis the company that
hires, discharges and compensates them and that directs their work.
In that relation the company is the employer and the foreman the
employee; when they sit on opposite sides of the bargaining table,
their interests are momentarily adverse. This is true whether they
bargain individually or collectively. The foreman is not "acting
in the interest of an employer" when he seeks to improve his own
working conditions; he is acting for himself. The company suggests
that the same man cannot, in logic, be both employer and employee.
But "the life of the law has not been logic; it has been experience.'
High judicial authority has held that a foreman can be both em-
ployer and employee; 5 the Board, including our dissenting colleague,
has always held him to be both; 6 the facts of industrial life have
made him both.
All employees may ask our protection in the exercise of the rights
declared in Section 7 of the Act, unless another section can be found
to bar that result. One protected right is that of employees to
bargain collectively through representatives of their own choosing.
Because the Board, even when denying protection, has never doubted
that a foreman is an "employee," the majority opinion in Maryland
D'rydock and the dissent in the Packard representation case were
based largely upon the theory that foremen do not constitute a "unit
appropriate for the purposes of collective bargaining." The theory
assumes that because Congress, by Section 9 (b) of the Act, em-
poweted the Board to determine which of several units is appropri-
9 Sections 2 (2) and 2 (3).
i O. W. Holmes , The Common Law, p. 1
5 N. L R . B v. Skinner & Kennedy Stationery Co., 113 F. (2d) 667, at 670 (C. C. A. 8),
where the court said , "A foreman , in his relation to his employer , is an employee , while in
his relation to the laborers under him he is the representative of the employer and within
the definition of Section 2 (2) of the Act * * '." These definitions in the Act are
not mutually exclusive ." N. L. R. B. v. Armour and Co. (C. C A. 10, Nov 5, 1945), 17
L R. R. 372. 373.
The fact that a man promoted to a foremanship may become an "arm of management"
does not mean that he thereupon ceases to be an employee of management . This view is
consistent with the familiar legal doctrine that an agent , although he must act in behalf
of his principal as against third persons , does not forfeit his rights against that principal
where their relations with one another are in issue.
6 Matter of Maryland Drydock Company , 49 N. L. R B. 733 ( 1943 ) ; Matter of Soss
Manufacturing Company, et at., 56 N. L. R. B. 348 ( 1944).
PACKARD MOTOR CAR COMPANY 1215
ate, "in order to insure to employees the full benefit of their right
to self-organization and to collective bargaining, and otherwise to
effectuate the policies of this Act," it also authorized us to find
that persons who are employees belong in no unit at all. The as-
sumption is open to question.
It seems much more probable that Congress intended Section 9
(b) to authorize the Board to group employees appropriately rather
than to exclude them from coverage. The only express exclusions
appear in Section 2 (3).7 The language of Section 9 (b) is lan-
guage of classification." It empowers the Board to select between
alternatives; we are to "decide in each case whether" employees
should vote and bargain in an "employer unit, craft unit, plant unit,
or subdivision thereof." It nowhere suggests that we should hold
that, despite their desires, certain employees may never utilize the
Act to select some representative or to bargain in any unit what-
soever.° Under the power to classify, the Board may, and properly
does, segregate supervisory employees from their subordinates, as
by declining to place them in the saute unit with rank-and-file em-
ployees. Here, however, we are not asked to segregate, but to ostra-
cize. Even assuming that Section 9 (b) might permit such a
result,10 that particular section certainly cannot be said to encourage it.
There are practical problems before us as well as legal ones. The
company is deeply concerned at the foremen's decision to join an
unaffiliated labor organization. The company's concern is as under-
standable as is its employees' decision. Both flow from the character
of American industrial life in the 1940's. The company is troubled
lest the unionization of its foremen detract from the single-minded
loyalty which it considers essential to efficient mass production; the
"These exclusions are limited to agricultural , domestic , and family workers. Super-
visory employees are not mentioned ; no Member of the Boaid suggested their exclusion
until as late as 1942.
8 The 1935 Congressional committee hearings and reports are to the same effect.
U See Matter of Bee Line, Inc, 6 N. Y S L R. B. 686, 695 ( 1943) :
"The concept of appropriate unit is an affirmative one, intended to bring about the
most desirable form of organization It is not a negative concept to be used as a
means of denying all bargaining rights under the Act to a given group of employees in
all circumstances . Once it is determined that a group of persons are employees, they
have a right under the Act and the Constitution of the State of New York to he placed
in some appropriate unit-that one which will best facilitate their participation in
the practice and procedure of collective bargaining "
Of course , the reference to the State Constitution is immaterial here . It might be noted
that the New York Board still adheres to this view , despite a change in personnel under a
different State Administration
ii This view as to the limited power vested in the Board under Section 9 (b) is not to be
taken to mean that the Board lacks discretion to decline to proceed with a representation
case upon proper cause shown. Our view of the fundamental policies of the Act may
sometimes require the Board to decline , despite the danger of strikes , to make its niacliiner^
available to effectuate every choice that employees may mako See Matter of Briggs-
Indiana Corporation , 63 N L. R B 1270 Section 9 (c) of the N I, R A provides that
this Board "may ", not that it must, investigate a question concerning representation and
certify the representatives selected This differentiates the Act tioni certain State statutes,
such as that of New York , which contain mandatory language
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foremen have thought collective action necessary because they believe
that individual bargaining has not afforded them the protection that
men require in a large, inevitably depersonalized, plant. Self-interest
is present on both sides, and so is fear. Fear, perhaps more than
self-interest, is a ready cause of industrial strife. In the long run,
collective bargaining will tend to reduce both the cause and the effect.
It will provide more fertile soil for the ultimate loyalty of foremen
than can the resentment that is likely to be engendered by hostile dis-
regard of their chosen representatives.
Bargaining can only succeed, however, if responsible unions repre-
senting supervisory employees, once their legal rights are established,
recognize the validity of some of management's special fears and seek
to dispel them by the terms of the ultimate bargain., Many of the
problems arising from possible dual allegiance, which give Mr. Reilly
such genuine concern, are particularly susceptible of this treatment.
Such problems flow inevitably from the foremen's dual existence.
They cannot be made to disappear simply by telling foremen that the
Wagner Act is not available to them. American management has
shown such resilient gen ins that, once foremen's representatives lose
their sense of insecurity and can adopt a policy of self-restraint, the
parties will find a way to resolve their occasional conflict of interest.
Government cannot resolve that conflict for them. But it can inter-
cede to lay the groundwork for reasoned negotiation. so that that which
seems anathema today may become habitual tomorrow.
It is not for this Board to determine whether supervisory employees,
sensing inequality of bargaining power, should seek to better their
lot by exercising the right of free association. They have already done
so. In this case we need only decide whether the Act's peaceful
processes are to be proffered or denied to employees who, for reasons
known best to themselves, desire to act in unison through what appears
to be a truly independent union.12 In the absence of any Court
decision '13 Congressional mandate or other declaration of national
policy to the contrary,l" and in the further absence of proof that collec-
tive bargaining by supervisory employees has failed where it has been
^l See dfattet of Delpait.e Realty Come, ation, 6 N Y. S. L. R. B. 907, 915.
32 The fact that the Foreman's Association's interests, and therefore its actions, may
sometimes coincide with those of rank-and-file employees does not suffice to convert natural
sympathy into partnership. Collaboration may be relevant , but the presumption that a
constitutionally- autonomous organization is in fact autonomous Is not so easily rebutted.
Affiliation per se is not before us here, and Mr. Houston and I do not pass, one way or the
other. neon its possible effe, t
23 Indeed , a State Board order finding appropriate a unit of supervisors has been enforced
by the courts in the test case of New York State Labor Relations Board v. metropolitan
Life Insurancc Comprnzy, et at, 185 N. Y. Misc. 1064, affirmed by the Appellate Division,
First Department, at 114 N Y. Law Journal, p. 1075 ( October, 1945 ). There are no con-
tiars Federal deeisions
14 The Labor-Management Conlerence ieaehed no conclusion on this subject.
PACKARD MOTOR CAR COMPANY 1217
attempted,15 it is better that a Board dedicated to encouraging the
bargainig process move forward, not backward,16 and continue to put
a premium on the conference table rather than on the harsh arbitra-
ment of industrial war. The more difficult the problem, the more
important it is that the stage be set for men to sit clown and reason
together.
MR. GLli uw D. Rr1LL Y, dissenting :
Since the respondent does not deny that it has refused to bargain
with the charging labor organization in this case, the issue before us
is the same one upon which we passed in our Decision and Direction of
Election in case 7-R-1884,11 the representation matter which resulted
in the certification upon which the complaint in the instant proceeding
is premised. The findings of the Trial Examiner to which respondent
has taken exception rest almost entirely upon the evidence submitted
in that preliminary phase of the case, except for three exhibits which
the respondent introduced as additional support for its position.
Having set forth at some length my disagreement with the views of
the majority in the representation case, I see no reason for repeating
them here, since the dissenting opinion is a part of the record, other
than to note that the additional documentary evidence contained in
this case strengthens my inference that the charging union is not truly
independent, but rather an organization whose fate is inextricably
bound up with the policy of the United Automobile Workers, the
CIO union which represents the rank and file employees in respond-
ent's plant18 This being the case, we do have a situation here which
presents a genuine question of divergent loyalties,-the conflict aris-
ing from the foreman's duty to his employer to enforce the company
rules with respect to subordinate employees, and his allegiance to a
union allied with one representing the interests of those very subordi-
nates. Consequently, I am unable to agree with the view expressed in
15 The history of bargaining by supervisory employees in the maritime and railroad indus-
tries and in the printing and building trades establishes, at the least, that collective agree-
ments can be made to work in practice So also does the testimony adduced in the Packard
representation case concerning the Foreman 's Association 's current contract with the Ford
Motor Company.
The record is barren of any proof that the Packard foremen have been disloyal to the
company or less efficient as supervisors because of their membership in the Association, or
that such membership has operated to deprive the rank -and-file employees of their primary
rights under the Act.
"Two reversals in as manv sears are onough
17 Matter of Packard Motor Car Company, 61 N L R B 4
'3I'amhculaily reference i, made to an excerpt from the March 1, 1945, issue of "The
Searchlight," an official publication of the Chevrolet Local No. 69 of the United Automobile
workers ( CIO), stating that about 300 Chevrolet foremen had joined the Foremen's
Association and that the rest of the foremen in that company should join this group
tvilliout delay. -
670417-46- vul 64--75
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the special concurrence of the Chairman that the concerted activities
of the foremen here are solely directed at improving the wages and
working conditions of the foremen vis-a-vis their employer . That is
of course their ultimate objective , but its attainment necessarily con-
templates compromising the members of the charging organization
in the discharge of the duties they were hired to perform.
If the certified organization were really independent or took steps
to guarantee against future instances of collaboration , or if the certi-
fication contained safeguards which would effectively insulate its
activities from the union of the rank and file, I should feel quite differ-
ently about the matter.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain with Foreman's Association of
America as the exclusive representative of our supervisory em-
ployees in the bargaining unit described herein.
WE WILL NOT engage in any like or related acts or conduct
interfering with, restraining , or coercing our supervisory employ-
ees in the exercise of their right to self-organization, to form,
join, assist, or bargain collectively through Foreman's Association
of America , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection. All
our supervisory employees are free to become or remain mem-
bers of the above-named union.
WE WILL bargain collectively upon request with the above-
named union as the exclusive representative of all supervisory
employees in the bargaining unit described herein with respect to
rates of pay , hours of employment , or other conditions of em-
ployment. The bargaining unit is:
All general foremen, foremen, assistant foremen, and special
assignment men employed at the Detroit , Michigan, plants.
PACKARD MOTOR CAR COMPANY,
Employer.
Dated ------------ By --------------------------- -----------------
(RePreaentative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
PACKARD MOTOR CAR COMPANY
INTERMEDIATE REPORT
_d1essis. David Karasick and David Gift in. for the Board.
Mr. Louis F Dahitng, of Detroit, Mich., for the respondent.
Mr. Walter M Nelson, of Detroit, Mich, for the Union
Sr_YPEMENr OF THE CASE,
1219
Upon a charge duly filed on June 8, 1945, by Foreman's Association of Amer-
ica. an unathliated organization, herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the
Seventh Region (Detroit, Michigan), issued its complaint on June 28, 1945,
against Packard Motor Car Company, Detroit, Michigan, herein called the
respondent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning, of Section
S (1) and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the
charge, with notice of hearing thereon, were duly served on the respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance that (1) on March 26, 1945, the Board in its Decision and Direction
of Election in Case No. 7-R-18841 found that all general foremen, foremen,
assistant foremen, and special assignment nien employed by the respondent
at its plants in Detroit, Michigan, constituted a unit for the purposes of col-
lective bargaining; (2) on April 28, 1945, the Board in its Certification of
Representatives in the same case, certified the Union as the exclusive repre-
sentative of all the employees in the said unit for the purposes of collective
bargaining, and that the Union is still such representative; (3) that on May
18, 1945, although requested to bargain collectively by the Union, the respondent
refused to do so; and (4) by the foregoing acts and conduct, the respondent
has interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On July 6, 1945, the respondent duly filed an answer denying the commission
of the alleged unfair labor practices. The answer admitted, however, the alle-
gations of the complaint as to the corporate existence of the respondent and the
nature, character, and extent of the business transacted by it, and the allegation
that it refused, to bargain collectively with the Union although the Union had
iequested it to do so. By way of affirmative defense, the answer asserted that
the Board erred in its findings in Case No. 7-R-1884 as to the appropriateness of
the unit in question for the reason, inter alta, that the Board had no power,
authority or jurisdiction to hold or conduct any hearing in that case, or to issue
any decision or direction, or to oider the holding of any election, or to issue any
certification or order thereon, and that therefore all findings, determinations,
directions , and orders therein are unconstitutional without legal force or effect,
wholly void, and not binding on the respondent,
Pursuant to notice, a hearing was held on July 9, 1945, at Detroit, Michigan,
before Howard Myers, the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. The Board, the respondent, and the Union were repre-
sented by counsel and participated in the hearing Full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce evidence bearing upon
'Matter of Packard Motor Car Company and Foreman's Association of America, 61
N L R. B. 4.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the issues was afforded all parties. Before the taking of any evidence, counsel
for the respondent moved to dismiss the complaint on the grounds that (1) the
persons who compose the unit alleged to be appropriate are not employees within
the meaning of the Act; (2) the alleged unit is inappropriate; (3) the Board
has no jurisdiction over the subject matter alleged in the complaint; (4) the
Board's action, by proceeding herein, is an illegal, unwarranted, arbitrary and
unreasonable interference with the rights of the respondent and therefore the
Board by proceeding herein is violating the respondent's constitutional rights;
(5) the Board may not in this proceeding lawfully order the respondent to bar-
gain collectively with the Union because to do so, the Board would be proceeding
contrary to the Act, abusing its discretion, and committing acts detrimental to
public interest; (6) the Board has no jurisdiction, power, or right to proceed
with Case No. 7-R-1884 and therefore it should not proceed with the present
case because this is the outgrowth of the former proceeding; (7) the findings,
certification, decisions, and directions issued in Case No. 7-R-1884 are illegal,
unconstitutional, null and void, and of no effect and therefore they do not afford
a basis for the filing of the complaint in the present proceeding; and (8) the
findings, certificate, decisions, and directions issued in Case No. 7-R-1884 are
contrary to the evidence submitted therein, beyond the limits of the Board's
discretion, an abuse of the Board's discretion, and contrary to the provisions of
the Act and therefore they are detrimental to public interest. The motion was
denied with leave to renew. At the close of the Board's case, Board's counsel
moved to conform the complaint to the proof The motion was granted with-
out objection. The respondent's counsel renewed the motion which he made at
the opening of the hearing to dismiss the complaint. The motion was denied
with leave to renew. At the conclusion of the hearing. Board's counsel moved to
conform the complaint to the proof and the respondent's counsel moved to con-
form the answer to the proof. Both motions were granted without objection."
The respondent's counsel then renewed the motion which he made at the open-
ing of the hearing and at the end of the Board's case to dismiss the complaint.
Decision then eon was reserved The motion is hereby denied.
Upon the entire record in the case, including the record in Case No 7-R-1884,3
the undersigned makes, in addition to the above, the following:
FINDINGS Or FACT
I. Pit E BUSINESS OF THE RESPONDENT
Packard Motor Car Company is a Michigan corporation with its principal
office and place of business in Detroit , Michigan. Prior to 1941, the respondent
was engaged at its Detroit plants in the manufacture and sale of automobiles
Since 1941 , the respondent ' s manufacturing facilities have been converted to
the manufacture of munitions for Army and Navy Ordnance and the respondent
is at the present time engaged almost entirely in war production . The respondent
anually purchases law materials valued in excess of $5.000.000 , of which 50
percent is obtained from sources outside the State of Michigan and is shipped to
the respondent 's plants located in the State of Michigan . The respondent's an-
nual sales of finished products exceed $5,000,000, of which 90 percent represents
sales of such products shipped from the Detroit , Michigan. plants of the respond-
ent to points outside the State of Michigan.
2 By error , the stenographic transcript does not show that the respondent 's motion was
granted It is hereby ordered that the transcript be deemed corrected accordingly.
3It was stipulated at the hearing that the record in Case No 7-R-1884 (including the
oral argument before the Board ) be included herein.
PACKARD MOTOR CAR COMPANY 1221
The respondent admits that it is engaged in commerce within the meaning
of the National Labor Relations Act.
li THE ORGANIZATION INVOLVED
Foreman's Association of America is an unaffiliated labor organization admit-
ting to membership supervisory employees of the respondent.
III THE UNFAIR LABOR PRACTICES
The refusal to bargain,
1. The appropriate unit and representation by the Union of a majority therein
On March 26, 1945, the Board issued its Decision and Direction of Election
in Case No. 7-R-1884 (61 N. L. R. B. 4), in which it found that all general fore-
men, foremen, assistant foremen, and special assignment men employed by the
respondent at its plants in Detroit, Michigan, constituted a unit appropriate for
the purposes of collective bargaining. On April 17, 1945, an election was held
pursuant to the aforesaid Direction of Election. According to the Tally of
Ballots certified to by representatives of the respondent and the Union, of the
1315 eligible voters 666 votes were cast for the Union, 435 against, and 155 votes
were challenged. No objections to the voting or to the conduct of the election
were filed by any of the parties. On April 28, 1945, the Board in its Certification
of Representatives, certified the Union as the representative of the employees in
the aforesaid unit for the purposes of collective bargaining.
The respondent contests the appropriativeness of the unit, referred to above,
and hence the subsequent certification of the Union therefor. No additional
evidence to support the respondent's contention was introduced in the present
hearing except the following: (1) a copy of a memorandum issued by Mr. Sam
Sponseller, C I. 0, Cleveland Regional Director, in which he states, among other
things, that the C. I. O. has opened its membership in a certain named local to
all "foremen and supervisory employees, excluding superintendents etc." and
solicits membership from among those eligible to join the named local; (2) a
copy of an article appearing in the May 27, 1945, issue of the Pittsburgh Press, a
Pittsburgh, Pennsylvania, daily newspaper, stating that the United Steelworkers
of America, an affiliate of the Congress of Industrial Organizations, plans to or-
ganize "all bosses who do not have `hire and fire' authority"; and (3) an ex-
cerpt from the March 1, 1945, issue of "The Searchlight", the official publication
of CIO-UAW, Chevrolet Local No. 69, wherein the author states that about 300
Chevrolet foremen had joined the Union herein and that the remaining foremen
should join the Union without delay. The undersigned is convinced, and finds,
that the evidence relied on by the respondent in this proceeding, including the
evidence submitted by it in Case No. 7-R-1S84, is insufficient to warrant a find-
ing that the unit heretofore found by the Board to be appropriate is inappropriate.
The undersigned finds that all general foremen, foremen, assistant foremen,
and special assignment men employed by the respondent at its plants in Detroit,
Michigan, constitute, and during all the times material herein constituted, a
unit appropriate for the purposes of collective bargaining. The undersigned
further finds that on and after April 28, 1945, the Union was the duly designated
bargaining representative of a_majority of the employees in the aforesaid ap-
propriate unit, and that, pursuant to the provisions of Section 9 (a) of the Act,
the Union was on April 28, 1945, and at all times thereafter has been, and now
is, the exclusive representative of all the employees in the aforesaid unit for
1222 DECISIONS or NATIONAL LABOR RELATIONS BOARD
the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment , and other conditions of employment.
2 The refusal to bargain
By letter dated May 2, 1945, the Union requested the respondent to fix a time
and place for the purpose of commencing collective bargaining negotiations. By
letter dated May 11, the respondent replied that it would meet with the Union's
representatives on May 18. Instead of meeting with the Union's representatives
on May 18, the respondent wrote the Union that day stating. among other things,
that the respondent considered the Board's proceedings which culminated in
the Board's certifying the Union as the collective bargaining representative
of the respondent's general foremen, foremen, assistant foremen, and special
assignment men, unconstitutional. void, and of no force or effect and therefore the
respondent would not recognize the said certification nor would it bargain col-
lectively with the Union as such representative until the issues involved had
been finally determined by judicial review. It is clear from the respondent's
letter and from the admissions contained in the answer filed by the respondent
in this proceeding, that at all times since May 18. 1945. the respondent has not
seceded from its position as outlined in its letter of May 18 The undersigned
accordingly finds that the respondent on May 18, 1945. and at all times thereafter,
has refused to bargain collectively with the Union as the exclusive representa-
tive of its employees in the appropriate unit, and thereby has interfered with.
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV THE EF1 I C1 OF 1 HE UNFA IR LABOR PR '.( rIcEs UPON COMrn,.r,CE
The activities of the i espondent set foi th in Section 111, above, occurring in
connection with the operations of the respondent desciibed in Section I, above,
have a close, intimate, and substantial relation to trade. traffic and commerce
among the several States, and such of them as have been found to be unfair
labor practices, tend to lead to Tabor disputes burdening and obstructing com-
merce and the free flow of commerce
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Since it has been found that the respondent has refused to bargain collectively
with the Union as the exclusive representative of its employees in an appropriate
unit, it will be recommended that the respondent , upon request, bargain collectively
with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following
Coaci.Usio\s or LAW
1. Foreman's Association of America, unaffiliated; is a labor organization.
within the meaning of Section 2 (5) of the Act.
2. All general foremen, foremen, assistant foremen, and special assignment
men, employed by the respondent at its plants in Detroit, Michigan, constitute a
unit appropriate for the purposes of collective bargaining. within the meaning of
Section 9 (b) of the Act.
PACKARD MOTOR CAR COMPANY 1223
3 Foreman's Association of America, unaffiliated, was'on April 28, 1945, and
at all times thereafter has been the exclusive representative of all the employees
in the aforesaid unit for the purposes of collective bargaining, within the meaning
of Section 9 (a) of the Act
4. By refusing on MYcy 18, 1945, and at all times thereafter, to bargain collec-
tively with Foreman's Association of America, unaffiliated, as exclusive repre-
sentative of all its employees in the appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (5)
of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, including the record in Case No. 7-R-1884, the under-
signed recommends that the respondent, Packard Motor Car Company, Detroit,
Michigan, its officers, agents, successors and assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with Foreman's Association of America,
unaffiliated, as the exclusive representative of all of its employees in the above-
described appropriate unit;
- (b) Engaging in like or related acts or conduct interfering with, restraining, or
coercing its employees in the exercise of the rights to self-organization, to form
labor organization, or to join or assist Foreman's Association of America, unaffili-
ated, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request bargain collectively with Foreman's Association of America,
unaffiliated, as exclusive representative of all of its employees in the above-
described appropriate unit and if an understanding is reached, embody such
understanding in a signed agicement:
(b) Post at its plants in Detroit, Michigan, copies of the notice attached hereto,
marked "Appendix A". Copies of said notice, to be furnished by the Regional
Director of the Seventh Region, shall, after being duly signed by the respondent's
representative, he posted by the respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Seventh Region (Detroit, Michigan),
in writing, within ten (10) days from the receipt of this Intermediate Report, of
what steps the respondent has taken to comply herewith.
It is further recommended that unless, on or before ten (10) days from the date
of the receipt of this Intermediate Report, the respondent notifies the said
Regional Director in writing that it will comply with the foregoing recommenda-
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any
party or counsel for the Board may within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations rile with the Board, Rochambean Build-
ing, Washington, D C , an original and four copies of a statement in writing set-
ting forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of it brief in support thereof.
Immediately upon the filing of such statement of exceptions and/or brief, the party
or counsel for the Board filing the same shall sei ve a (.ol)v thereof upon each of the
other parties and shall file a copy with the Regional Ditector. As further pro-
vided in said Section 33, should any party desire permission to argue orally before
the Board, request therefor must be made in writing within ten (10) days from
the date of the order transferring the case to the Board.
HOWARD MYERS,
Trial Examiner.
Dated July 18, 1945.
NLRB 582
(9-1-44)
APPENDIX A
NOTICE TO AIL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Foreman's Association of America or any other labor organi-
zation, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection. All our employees are free to become or
remain members of this union, or any other labor organization.
WE WILL BARGAIN collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employment or other conditions of
employment, and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is: all general foremen, foremen,
assistant foremen, and special assignment men employed at the Detroit,
Michigan, plants.
PACKARD MOTOR CAR COMPANY,
Employer.
By -------------------- --------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.