Auto-Lite Battery Corp.

National Labor Relations Board - Board Decisions

Mar 25, 1946

66 N.L.R.B. 1132 (N.L.R.B. 1946)

In the Matter of AUTO-LITE BATTERY CORPORATION, OWEN-DYNETO
DIVISION and FOREMAN'S ASSOCIATION OF AMERICA, CHAPTER 117
(INDEPENDENT)
Case No. 3-R-1040.-Decided March 25, 1946
Mr. James P. Falvey, of Toledo, Ohio, for the Company.
Mr. W. Allen Nelson, of Detroit, Mich., for the Union.
Mr. Oscar Geltman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon an amended petition duly filed by Foreman's Association of
America, Chapter 117 (Independent), herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Auto-Lite Battery Corporation, Owen-
Dyneto Division, Syracuse, New York, herein called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Eugene von Wellsheim, Trial Exami-
ner. The hearing was held at Syracuse, New York, on August 23,
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
for lack of jurisdiction. The Trial Examiner referred this motion
to the Board. For reasons stated hereinafter, the motion is denied.
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.
Upon the entire record in the case, the Board makes the following :
FINDINGS or FACT
1. TILE BUSINESS OF TILE COMPANY
Auto-Lite Battery Corporation, Owen-Dyneto Division, a New
York corporation, is engaged at a plant on Park Street, in Syracuse,
66 N. L . R. B., No. 136.
1132
AUTO-LITE BATTERY CORPORATION 1133
New York, in the manufacture of generators, voltage and current
regulators , motors, and 'windshield wipers. Since July 1945, the
Company has performed certain of its assembly operations at an
additional plant located on West Onondaga Street, Syracuse, New
York. Between August 1, 1944, and August 1, 1945, the Company
used in its manufacturing processes raw materials valued in excess
of $1,000,000, of which more than half represented shipments to it
from points outside the State of New York. During the same
period, the Company produced finished products valued in excess of
$1,500,000, of which more than half represented shipments to points
outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. TIIE ORGANIZATION INVOLVED
Foremen 's Association of America, Chapter 117 ( Independent), is
an unaffiliated labor organization admitting supervisory employees
of the Company into membership.
Ill. TILE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of its supervisory employees
until the Union has been certified by the Board in an appropriate
unit.
The Company argues in support of its motion to dismiss the petition
that the supervisors involved in this proceeding are not employees
within the meaning of the Act and that consequently the Board lacks
jurisdiction of the subject matter . The status of foremen and
comparable supervisors under the Act has been considered in a number
of Board I and court 2 decisions . Both the Board and the courts
have concurred in holding that foremen have a dual aspect under
the definitions of "employer" and "employee " contained in the Act.
When he acts in the interest of his employer, a foreman is an "em-
ployer"; but when he acts in his own interest , as when he seeks to
better the terms and conditions of his employment , he is an "em-
ployee." There is no inconsistency in recognizing such duality of
status. Accordingly, we find that for the purposes of this proceeding
1 Matter of Soss 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
Itadland Steel Products Company, Parish & Bingham Division , 65 N. L. R. B 997
37V L R. B. v. Armour and Co. 154 F. (2d) 570 (C C A 10) ; Jones & Laughlin
Steel Corporation v. N. L R B, 146 F. (2d) 833 (C C. A 5) ; N L R B v Skinne) J
Kennedy Stationery Company, 113 F ( 2d) 667 (C. C. A. 8).
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD)
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
hearing , indicates that the Union represents a substantial number
of employees 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. THE APPROPRIATE UNIT
The Union seeks a unit consisting of "all production and mainte-
nance supervisory employees" below the grade of superintendent at
the Company's Syracuse, New York plants, excluding group leaders 9
and staff supervisors.5 Without waiving its position that the
employees sought herein are part of management and therefore cannot
constitute an appropriate unit, the Company agrees that group
leaders and staff supervisors should be excluded from any unit found
appropriate by the Board. It objects, however, to the inclusion of
any Onandaga Street plant employees in the unit.
In support of its argument that the supervisors here involved
are part of management, the Company attempts to distinguish this
case from the Packard C case on the ground that the supervisors in
this proceeding have duties, powers and responsibilities greater than
those of the supervisors in that case. In the recent Foung I case
where similar issues were raised, we held, as we do here, that foremen
are employees within the meaning of Section 2 (3) of the Act; that,
as employees, they are entitled to be placed in some appropriate
unit under Section 9 (b) ; that the type of industry in which they
are employed is immaterial; and that the nature of the duties and
responsibilities of foremen is relevant only insofar as it bears on
the question of their proper grouping for collective bargaining
purposes.
The record discloses that the Company's "production and mainte-
nance supervisory employees" below the grade of superintendent
consist of 11 foremen and 3 assistant foremen. all of whom regularly
work at the Park Street plant. Although some of them, on occasion,
may work at the Onondaga Street plant. none of them is regularly
'The Field Examiner reported that the Union submitted 14 designation cards There
are approximately 14 employees in the appropriate unit.
4 The record indicates that the group leaders are not supervisory employees.
'The staff supervisors, who consist of the persons in charge of the purchasing, plan-
ning, methods, engineering , time-study, and employment departments , and the office man-
ager , apparently do not fall within the group of "production and maintenance super-
visory employees."
' Matter of Packard Motor Car Company, supra
7 Matter of L. A. Young Spring d Wire Corporation , supra.
AUTO-LITE BATTERY CORPORATION 1135
assigned to that plant. The foremen and assistant foremen have
substantially the same duties and have similar supervisory powers
over their subordinates. Foremen, however, seem to have more re-
sponsibility than do assistant foremen. Assistant foremen substitute
for foremen in the latter's absence. All the foremen and assistant
foremen are either production or maintenance supervisors and fall
within the two lowest levels of supervisors" in the employ of the
Company a In view of the similarity in their powers and duties,
we conclude that the foremen and assistant foremen comprise an
appropriate bargaining group.
As indicated above, at the time of the hearing none of the foremen
or assistant foremen had been permanently assigned to the Onondaga
Street plant; nor had the Company made any definite plans for
future operations at that plant. The Union contends, however, that
the unit it seeks to establish should cover employees in "all locations"
of the Company. Inasmuch as the Union has made a showing of
representation only among employees at the Park Street plant, we
shall include only employees at that plant in the unit.
The Company has made no contention that the Union is not inde-
pendent of the labor organization which is the bargaining representa-
tive of its rank and file employees. As in previous cases involving
the petitioner," we find that the Union is an independent, unaffiliated
labor organization organized for the exclusive purpose of representing
supervisory employees.
We find, therefore, that all foremen and assistant foremen employed
in the Company's Park Street plant, Syracuse, New York, but ex-
chiding group leaders and staff supervisors, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
V. THE DETERMIN ATION OF REPRESENT ATIVES
We shall direct that the question concerning representation which
has arisen be resolved by all election by secret ballot among the
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.
All the foremen are apparently on the same supervisory level, although some are paid
on a salary basis, and some on an hourly basis.
9 The next higher level of supervision consists of the night superintendent and the
plant superintendent.
10Matter of L. A. Young 5priap & lVve Corporation, supra; Matter of The it F Good-
rich Company, supra.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Auto-Lite Battery
Corporation, Owen-Dyneto Division, Syracuse, 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 Third
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 ap-
propriate 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 em-
ployees in the armed forces of the United States who present them-
selves 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 Foreman's Association of
America, Chapter 117 (Independent), 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, 61 N. L. R. B. 4, I am constrained to
dissent from the majority opinion in this case.