Brown & Sharpe Mfg. Co

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 1031 (N.L.R.B. 1949)

In the Matter of BROWN & SHARPE MFG. Co and INTERNATIONAL,
FEDERATION OF TECHNICAL ENGINEERS, ARCHITECTS AND DRAFTSMEN'S-
UNIoN, LoCAL No. 119, A. F. of L.
Case No. 1-C-10953
SUPPLEMENTAL DECISION
AND
ORDER AND RECOMMENDATION
December 16, 1949
On June 28, 1949, Trial Examiner Arthur Leff issued his Supple-
mental Intermediate Report in the above-entitled proceeding, finding.
that the Respondent's time-study men are not "supervisors" within
the meaning of Section 2 (11) of the Act, as amended, and that they
are "employees" within the meaning of Section 2 (3) of the Act, as
amended, and recommending that the Board reinstate in all respects.
its Order herein which, pending proceedings on remand, was set aside
by the decree of the United States Court of Appeals for the First.
Circuit, as set forth in the copy of the Supplemental Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions
to the Supplemental Intermediate Report and a supporting brief.
The Respondent's request for oral argument is denied because we
believe the entire record herein and the Respondent's brief adequately
present the issues and the positions of the parties..
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirlned. The Board has considered the Supplemental Intermediate
Report, the Respondent's exceptions and brief, and the entire record'
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as hereinafter supplemented.'
1 We find it unnecessary , however, to adopt or pass upon the Trial Examiner ' s finding
that the time-study men are "professional " employees . Although such employees would
no doubt usually meet the requirements of the definition of "professional ," whether they
are or are not is not an issue in this case and it is therefore unnecessary to make such a
determination.
87 NLRB No. 121.
1031
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1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its Decision and Order,2 issued on July 31, 1947,3 the Board found
that the Respondent unlawfully refused to bargain collectively with
the Union as the certified bargaining representative for an appropriate
unit of time-study men.' The United States Court of Appeals for
the First Circuit, upon petition by the Board for enforcement of its
Order, remanded. the case to the Board for a determination, "with
direct reference to the present statutory situation," as to whether the
Respondent's time-study men fall within the definition of "supervisor"
contained in Section 2 (11) of the amended statute, which had become
effective after the issuance of the Board's Decision and Order. Under
the amended statute, "supervisors" are specifically excluded from the
definition of "employee" and are therefore not entitled to the organiza-
tional guarantees of the Act.'
The Court, in considering the effect of the amendatory legislation
upon the case as it was presented before it for enforcement, examined
the legislative history. It found a clear indication that Congress
did not intend to include time-study men "as a class" in the "super-
visory" category. Thus, the issue before the Court was reduced to
whether this Respondent's time-study men performed such "particu-
lar" duties, in addition to and beyond those performed by time-study
men "as a class," as would independently bring them within the super-
visory definition in the amended Act. However, the Court took
,cognizance of the fact that the Board, when it entered its Order,
was not called upon to consider this question and consequently made
no findings of fact thereon. Thereupon, the Court undertook no more
than to conclude that "on the facts so far found [by the Board] the
time-study men involved do not as a matter of llaw^ fall in the class
.of `supervisors' as that term is at present defined," and remanded the
case to the Board (emphasis added).s
Section 2 (11) of the Labor Management Relations Act, 1947, con-
tains the following definition of the term "supervisor":
The term "supervisor" means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off,
2 74 NLRB 801.
3 The Labor Management Relations Act, 1947, was enacted on June 23, 1947, and became
effective on August 22, 1947.
4 As fully described in the Supplemental Intermediate Report, the Board had originally
found in its Decision and Direction of Election (68 NLRB 407) that time-study men were
"employees" under the Act and that they constitute a separate appropriate unit. This
finding was affirmed after a further hearing and oral argument before the Board (70 NLRB
709) and reaffirmed in the Decision and Order, supra.
2 Section 2 (3) of the amended Act provides, in part
The term "employee" . . , shall not include . . . any individual employed as a super-
visor....
s The Board is the exclusive trier of the facts and its findings if supported by substantial
evidence on the record considered as a whole are conclusive. Waterman Steamship Corp.
v. N. L. it. B., 309 U. S. 206, 208; Eastern Coal Corp. v. N. L. R. B., (C. A. 4), 176 F. 2d 131.
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BROWN & SHARPE MFG. CO. 1033
recall, promote, discharge, assign, reward, or discipline other
employees or responsibly to direct their, or to adjust their griev-
ances, or effectively to recommend such action, if in connection
with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
The Respondent's argument before the Court, and now before the
Board in the remand proceeding, is confined to the contention that its
time-study men possess the "authority" to "reward" other employees
and "to adjust their grievances," or "effectively to recommend such
action," within the meaning of the above-quoted definition. Thus, the
Respondent concedes that the time-study men in question possess none
of the remaining authorities enumerated in the definition. The pre-
cise issues in the case, therefore, as drawn by the Court and care-
fully analyzed and considered by the Trial Examiner, are further
reduced to (1) whether the Respondent's time-study men perform
any "particular" duties, substantially different from those performed
by the time-study men contemplated by Congress when it enacted
Section 2 (11) ; and (2), if so, do those "particular" duties establish
their "authority" under the amended statute. to "reward" other em-
ployees or "to adjust their grievances," or "effectively to recommend
such action."
SUPPLEMENTAL FINDINGS
1. We find, as did the Trial Examiner, upon a close examination
and comparison of Board cases, that the Respondent's time-study men
perform functions which are not substantially different from those
performed by the time-study men involved in a number of cases de-
cided by the Board since the effective date of the amended Act. In
the cases cited by the Trial Examiner, and in similar cases decided
since the issuance of his Supplemental Intermediate Report,' the
Board uniformly held that the time-study men involved were not
"supervisors." On the basis of these cases, we are convinced that the
Respondent's time-study men are not distinguishable in their func-
tions and responsibilities from time-study men in industry generally.
Further support for this conclusion is readily found in an exam-
ination of leading authorities in the field of management and indus-
trial relations respecting the functions normally performed by time-
study men." The general time-study work described by these authori-
' E. g., Chicago Pneumatic Tool Company, 81 NLRB 584 ; Minneapolis-Moline Company,
85 NLRB 597.
6 See, e. g., Cornell, Organization and Management ( 1936 ) ; Barnes, Motion and Time
Study (3rd Ed. 1949) ; 5priegal and Lansburgh, Industrial Management (1947) ; Gomberg,
A Trade Union Analysis of Time Study (1948) ; Balderston, Karabasz, and Brecht, Man-
agement of an Enterprise (1935) ; Mogensen, Motion and Time Study (1932) ; Olsen, The
:1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties 9 clearly encompasses all the duties and responsibilities of the
-Respondent's time-study men, including those particular duties and
responsibilities which the Respondent relies upon to distinguish them
-Standard Movement Time Approach to Incentives, Factory Maintenance and Management
-CIV (March 1946) 126-130 ; Barth, Time Studies for Rate Setting, as Originated by
Dr. F. W. Taylor, The American Machinist, XLVI, No. 4 (1917), 177; 178; Merrick, Time
Studies as a Basis for Rate Setting (as Developed in the Taylor System of Management
(1919)) : The Taylor Technique for Time Study, Bulletin of the Taylor Society, -III, No. 3
(1928) 106, 112; U. S. Department of Labor, Bureau of Labor Statistics, Bulletin No. 686,
Union Agreement Provisions (1942), Ch. 6, and Bulletin No. 908-3, Time Studies and
Standards of Production (1948), pp. 49-52.
9 For example the chart below compares the "particular" duties of these time-study men,
.as urged by the Respondent before the Court and the Board, with the duties of time-study
men in general, as discussed in Cornell, Organization and Management, ibid, at the pages
indicated.
Respondent's Time-Study Men
1. Require correct methods ( includes insist- 1.
once that time-study be taken while
correct feeds and speeds are being used).
:2. Effort rating.
Time-Study Men in General
"Although in many concerns time study
is introduced primarily for the purpose
of setting rates for piecework or some
other form of incentive wages, its true
purpose is threefold : (1) to determine
the one best way of doing a task and
the proper elapsed time for doing the
task in the one best way ;'(2) to secure
better and more accurate control in
planning; (3) to serve as a basis for
the setting of fair and adequate wage
rates . . . " (Pages 686, 687.)
"Standard times should always be set
using as a basis the average skilled oper-
ator. Therefore, in determining stand-
ard time, the degree of skill of the
operator studied and the amount of
effort expended in comparison with
that of an average . skilled operator must
be taken into consideration as well as
the working conditions under which the
operation is performed. For this rea-
son, the average time as it appears on
each study sheet must be tempered ac-
cordingly-decreased, increased, or re-
main the same depending upon the case
in question . . . There is no question
that judgment does play an important
part, but in every case this judgment
should be guided if satisfactory results
are to be obtained." (Pages 707, 708.)
"By adding the standard time of all ele-
ments of an operation, the total time
of the task is obtained. This, however,
is a flat basic time and does not allow
for a worker to stop to rest for a few
moments now and then, nor for per-
sonal needs or other delays. To the
standard basic time should be added a
definite allowance to cover fatigue, per-
sonal needs, and special requirements
peculiar to the task such as set-up
time, sharpening, and changing tools,
gauging, etc., and' for delays beyond the
control of the worker, if there are any.
The allowance for fatigue varies with
2.
3. Allowances (personal needs, fatigue, delay, 3.
tool maintenance, chip removal).
BROWN & SHARPE MFG. CO. 1035
from tine-study men "as a class," and specifically to establish their
alleged supervisory authority to "reward" other employees. More-
over, the record shows that, before the enactment of the amended
Act, the Respondent itself did not consider- that its time-study men
performed duties different from those performed by time-study men
,generaily.10 On the basis of the whole record in the case, we believe,
and find, that the Respondent's time-study men fall entirely within
4. Select portions of operations for which 4.
incentive rate will be computed (in-
cludes distinguishment by time-study
man of time values to be considered and
those to be ignored).
S. Allowance slips (temporary job rates for 5.
non-standard conditions).
6. Route sheet (or time setting slip in which
the time-study man sets forth the proper
elements in the operation time-studied
and the order, in which they are to be
performed).
7. Miscellaneous (e. g., personal relations
between the time-study men and the
operating force ; explanation of methods
and technique.)
the kind or nature of work and with the
particular operation. For c e r t a i n
classes of work, formulas and curves
have been worked out for determining
the amount of time to allow under vary-
ing conditions." (Pages 708, 709.)
See item 1, above.
"Non-standard conditions. The foreman
in such cases, by means of a request for-
time-study- notifies the proper person
in the time-study section. The latter
investigates the situation and if he
agrees with the request issues an 'Al-
lowance Slip' to cover the emergency.
In every case, insofar as it is possible,
the new temporary rate as granted by
the allowance slip should be set on an
incentive basis." (Page 713.)
"The Route Sheet . . . piece-work prices
purposely have been set so that the oper-
ator must do the combination of opera-
tions as stated [in the route sheet pre-
pared by the time-study man], other-
wise it would be impossible for him to
earn day wages for his day's work."
(Page 712, see also page 633.)
"There is nothing mysterious about time-
study work nor anything that should be
kept secret." (Page 690.) "The fore-
men and operators may be shown in
detail how the stop watch works •and
how the complete time-study is taken,
how the allowances for fatigue, personal
needs, grinding tools, set-up time, etc.,
are determined, how the standards
time and rate of production are com-
puted and so on." (Page 691.) "The
time-study men should refrain from
criticizing an operator's work or the
methods he uses. His suggestions should
always be constructive and given only to
the extent of the worker's receptiveness
to them." (Page 691.)
6.
7.
10 John J. Hall, head of the Respondent's personnel department, in response to a ques-
tion by Trial Examinee Greene at the original representation hearing, testified as follows :
Q. For the time-study men, Mr. Hall, their duties are just what their names ap-
plies. They are the same duties that practically all time-study men have?
A. Time-study men ; that's what they are.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the type and class of time-study men specifically intended by Congress
not to be considered as "supervisors" under the Act, as amended.
2. Respecting the alleged "authority" on the part of the time-study
men to "reward" other employees, "to adjust their grievances," or
"effectively recommend such action," we are in full accord with the
Trial Examiner's detailed findings and conclusions which reject those
allegations.
In the Supplemental Intermediate Report, as in the Opinion of
the Court, the legislative history of Section 2 (11) is found to reveal
the Congressional intent to limit the supervisory definition to "bona
fide supervisors," 11 or "individuals generally regarded as foremen
and persons of like or higher rank." Such bona fide supervision, as:
intended in Section 2 (11), manifestly contemplates "authority" la
over "other employees." We fail to perceive such "authority" in the,
Respondent's time-study men. All the duties and responsibilities of
the time-study men, as disclosed in the record, are concerned with the:
technical aspect of the operations performed by "other employees,"
rather than with these employees as such, over whom, it is clear; the
time-study men possess no power, direct or recommendatoly.'3- While
their functions as technicians, like those of the Respondent''s mechani-
cal engineers and planners,14 may have an effect upon the earnings
and employment conditions of "other employees," such effect is entirely
incidental, and clearly does not stem from the exercise by them of a
bona fide supervisory power to "reward" within the intendment of the
amended Act.
We believe, like the Trial Examiner, that to "adjust" the "griev-
ances" of other employees within the meaning of Section 2 (11), the
Respondent's time-study men must have the authority. to make con-
cessions in derogation of the factual findings in the particular time-
study giving rise to the grievance. The limited function of the time-
study men, before and after the institution of a formal grievance, of:
explaining and justifying, but not altering, the findings in the time
study, which constitutes the very subject of the production worker's:
complaint, serves at best merely to persuade the complaining party
11 See footnote 6 of the Supplemental Intermediate Report.
12 The dictionary definition of "authority ," as the term is used in Section 2 ( 11), connotes:
"Legal or rightful power ; a right to command or to act" ( emphasis added ). Webster's
International Dictionary , Second Edition , Unabridged.
13 For example , the Respondent 's personnel head , on cross -examination at the original
1i346 representation hearing , testified that the time -study men have no authority to hire
or discharge employees , increase their wages , or change their position , and that in fact,
the Respondent did not contend that they were supervisors , as that term was then defined
by the Board.
12 See Decision and Direction of Election in this case, supra . It is noted , for example,
that Personnel Head John J. Hall testified at the original representation hearing that in
many instances the planners set the hourly pay to be given workers and in that capacity
determine the workers ' earnings on particular operations,
BROWN & SHARPE MFG. CO. 1037
that no basis for a grievance exists. The Respondent argues that the
latter function of the time-study is more important than the adjust-
ment or settlement of grievances, in that it prevents a dispute from
arising and instills in the production worker a confidence in the fair-
ness of the time standard. Indeed, it appears that the Respondent's
basic position in this case from its inception has been that the "im-
portance" of the time-study man's functions in the Respondent's pro-
duction scheme, and the independent judgment he must exercise in
-certain phases of his time-study, deprives the time-study man of his
:status of an "employee" under the Act. However, as pointed out by
the Court and by the Trial Examiner, these attributes of the time-
:study men relied upon by the Respondent fall short of rendering them
"supervisors," under the amended Act. Patently, in this position, the
Respondent misconstrues the plain language of Section 2 (11) which
.specifies "authority" to "adjust," not otherwise shown in the record
as inhering in the functions of its time-study men.
The undisputed fact, as set forth in the Opinion of the Court, is
that the time-study man in the employ of the Respondent "does not
-participate in [grievance] negotiations leading to settlement of the
dispute." 15 This fact remains unaltered in the remand proceeding.
That the Respondent's time-study men have no power to make adjust-
Juents of grievances is now fully demonstrated in the record.16
In its Opinion, the Court construed the "authority" in Section •2
(11) to "adjust" the "grievances" of employees as entailing "the use
of independent judgment in collecting, analyzing, evaluating, and
considering pertinent data for the purpose of determining the validity
.of a grievance . . ." The Court decided, however, on the record
before it, that the Board had "found that representatives of higher
management, not time-study men, have authority to do this." With
direct reference to the present statutory situation, we are of the opinion
that any data which the Respondent's time-study men collect, analyze,
evaluate, and consider are solely for the purpose of establishing time
standards and rates pursuant to the Respondent's wage incentive pro-
15 Emphasis added.
19 It is significant that in the hearing on remand, which was confined to the issues clearly
outlined by the Court, the following testimony was elicited from witnesses on behalf
of the Respondent: (By John J. Hall, the Respondent's personnel head.)
... the time-study man knows that they [the prices established as a result of the
time-study] are right. The entire record of the grievance procedure and all hearings
is a part of all the company's representatives to sell the idea to the union and the
employees that that is right, and that is all we are doing, not to try to change these
and adjust these because in a great majority of cases we know they are right . . .
go that's the job they [the time-study men] do. It isn't trying to make adjustments
or make changes; it is in selling the price, the fairness of it. [Emphasis added.]
,(By J. Albert Newton, Jr., head of the Respondent's Wage Incentive Department.)
He [the time-study man] will frequently participate in the [grievance discussion]
but will not make the adjustment.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gram and not for the purpose of determining the validity of a.
grievance.
ORDER AND RECOMMENDATION 17
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that its Order in this proceeding, dated
July 31, 1947, be, and it hereby is, reinstated in all respects, and
respectfully recommends to the United States Court of Appeals for-
the First Circuit that the said Order be enforced.
SUPPLEMENTAL INTERMEDIATE REPORT
HISTORY AND STATEMENT OF THE CASE
A. The representation proceeding
Pursuant to a petition for investigation and certification of representatives
filed by International Federation of Technical Engineers, Architects and Drafts-
men's Union, Local 119, affiliated with the American Federation of Labor, herein
called the Union, the National Labor Relations Board, herein called the Board,
conducted a hearing on February 8, 1946, and, on June 6, 1946, issued a Decision
and Direction of Election in Case No. 1-R-2794 (68 NLRB 487). The Board
found, inter alia, that all time-study men employed by Brown & Sharpe Mfg.
Co., herein called the Respondent, excluding supervisors, constituted a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9 (b)
of the National Labor Relations Act, 49 Stat. 449, and that a question affecting
commerce existed concerning the representation of these employees. Thereafter,
on June 18, 1946, the Respondent petitioned the Board for an order reopening Case
No. 1-R-2798 and for a rehearing therein insofar as that case affected time-study
men. The Board granted the Respondent's petition, ordered a further hearing to,
.take evidence respecting the functions and status of the Respondent's time-study
men, and further ordered that the election theretofore directed be held on June
28, 1946, as scheduled, and that the ballots in the time-study men group be im-
pounded pending the Board's final determination as to their status. Following
the further hearing held on July 5, 1946, the Board, on August 26, 1946, issued a
Supplemental Decision and Direction (70 NLRB 709), in which it found that
the time-study men were employees within the meaning of Section 2 (3) of said
Act, and affirmed its prior finding that the time-study men constituted an appro-
priate unit for purposes of collective bargaining. The Board also directed the
opening and counting of the impounded ballots which had been cast in the elec-
tion by secret ballot held on June 28, 1946. The tally of such ballots showed
that a majority of the employees in the time-study unit had voted in favor of rep-
resentation by the Union. On September 27, 1946, the Board certified the Union
as the collective bargaining representative of the employees in that unit.
li Although Members Reynolds and Gray concur with the finding that the time-study
employees herein are not "supervisors" within the meaning of the Act, as amended, they
desire to reiterate their views set forth in the concurring and dissenting opinions in
Worthington Purolp and Machinery/ Corporation, 75 NLRB 67S, and Detroit Harve.eter
Company. 79 NLRB 1816, that time-study employees should be represented only by a labor
organization which is independent and has no affiliation with any organization representing:
rank-and-file employees.
BROWN & SHARPE MFG. CO. 1039-
B. - The unfair labor practice proceeding before the Board
On November 15, 1946, the Respondent, challenging the validity of the certifica-
tion, rejected the Union's request to bargain collectively with it as representative
of the time-study men. Thereafter, upon charges filed by the Union, the Board.
issued its complaint in the instant proceeding (Case No. 1-0-2953), alleging that
the Respondent's refusal to bargain constituted an unfair labor practice. In its
answer to the Board's complaint, the Respondent admitted its refusal to bargain
but reiterated its challenge to the Board's findings that the time-study men were
employees within the meaning of the Act, and that they constituted an appro-
priate bargaining unit. At the hearing before the Trial Examiner in the com-
plaint proceeding, held on January 13, 1947, no further evidence was adduced
concerning the functions and duties of the time-study men; the parties rested in.
that regard upon the record made in the representation proceeding. In support
of its position that the time-study men were not "employees" and that the unit
was inappropriate, the Respondent contended, as it did in the representation pro-
ceeding, that the time-study men performed essentially "managerial " and "con-
fidential" functions. In its decision, issued July 31, 1947, and reported in 74-
NLR13 801, the Board adhered to its rulings made in the representation pro-
ceeding. The Board found that the Respondent violated Section 8 (1) and 8 (5)•
of the National Labor Relations Act by refusing to bargain with the Union as the
exclusive bargaining agent of its employees in the time-study unit, and ordered
the Respondent to cease and desist from the unfair labor practices found, to bar-
gain collectively with the Union on request, and to post appropriate notices.
C. The petition for enforcement and the remand by the Court
On or about February 26, 1948, the Board petitioned the United States Circuit
Court of Appeals for the First Circuit for enforcement of its order against the
Respondent, pursuant to Section 10 (c) of the Act. The National Labor Rela-
tions Act had in the meantime been amended by the Labor Management Relations
Act, 1947 (61 Stat. 136). The Respondent resisted the Board's petition for en-
forcement principally on the ground that the Board's Order was not enforceable
under the amended Act because its time-study men were no longer "employees"
but rather "supervisors" within the definition of that term as contained in Sec-
tion 2 (11) of the Act, as amended. On July 30, 1948, the Court set aside the
Board's Order and remanded the case to the Board for further appropriate pro-
ceedings consistent with its Opinion (169 F. 2d 331).
In its Opinion, the Court stated that were it to decide the case, as the Board
did, under the Act as it stood before it was amended, it "would not hesitate
for long in granting the Board's petition." The determinative question to be
decided, however, according to the Opinion of the Court, was whether the order
was still enforceable in the light of the changes made by the amendatory legisla-
tion contained in Section 2 (3) and 2 (11) of the amended Act. The Conrt
stated that it could not "agree with the Respondent that on the findings thus
far made by the Board it must be held as a matter Cf: law that the time-study
men involved are `supervisors' within the present statutory definition of that
term and hence are not employees entitled to the organizational privileges of
the Act." While conceding, as had the Board, that the findings established that
the authority exercised by the Respondent's time-study men in some of its aspects
at least "is not of a merely routine or clerical nature, but requires the use of
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent judgment," the Court held that that standing alone "does not as a
platter of law require that they be put in the supervisory class." To be classified
as supervisors within the meaning of Section 2 (11), the Court held, it was neces-
sary also to find that the time-study men possessed "authority to use their inde-
pendent judgment with respect to the exercise by them of some one or more of
the specific authorities" listed in that section. The Board's findings theretofore
made did not, in the view of the Court, determine that the Respondent's time-
study men possessed "authority" to "reward" or to "adjust the grievances" of
other employees, or effectively to recommend such action within the statutory
intendment.
The Court, moreover, expressly recognized that "the legislative history of the
Labor Management Relations Act, 1947, clearly indicates that Congress did not
intend to place time-study men as a class in the supervisory category."
Yet, in the Opinion of the Court, the question remained unresolved, whether
the Respondent's time-study men had such particular duties, "in addition to their
primary function of determining time standards for production operations" as
to place them in the category of "supervisors" as that term is defined in the
amended Act. That, concluded the Court,
is a question which of course the Board was not called upon to consider
and pa$S upon when it entered the order it here seeks to have enforced,
because it entered that order before the passage of the Labor Management
Relations Act, 1947. We think it ought to have an opportunity to do so now.
We think that in the orderly administration of the present Act the Board
ought to be given an opportunity to review the facts and to make findings
and reach conclusions with direct reference to the present statutory situation
before we undertake to go further than to say that on the facts so far found
the time-study men do not as a matter of law fall in the class of "supervisors"
as that term is at present defined.
D. The proceedings on remand
On October 25, 1948, the Board issued an order remanding the above-entitled
proceeding to the Regional Director for the First Region for the purpose of con-
ducting a bearing in accordance with the aforesaid Opinion and decree of the
Circuit Court. Thereafter, pursuant to the remand, and upon due notice, a
LLearing was held before the undersigned, Arthur Leff, the Trial Examiner duly
designated by the Chief Trial Examiner, between February 23 and 26, 1949, at
Providence, Rhode Island. The General Counsel of the Board, the Respondent,
and the Union were represented at and participated in the hearing. All parties
were afforded opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence hearing on the issues. Opportunity was afforded all
parties for oral argument upon the record and for the tiling of briefs and proposed
findings of fact and conclusions of law. Briefs were thereafter filed by the
General Counsel and by the Respondent.
Upon the etltzre record in the case, and from my observation of the witnesses, I
wake the following:
SUPPLFIXTENTAL FINDINGS OF FACT
A. The functions, duties, and authority of time-study mesa
It should be noted, to begin with, that all parties stipulated at the remand
hearing that the Board's findings contained in its supplemental decision in the
aepresentg,tioii proceeding (70 NLRB 709), and also recited at length in the Opin-
BROWN & SHARPE MFG. CO. 1041
ion of the Court of July 30, 1948, correctly state in substance the functions per-
formed by the Respondent's time-study men. It was also conceded by the Re-
spondent during the course of the hearing that there had been no changes in
the duties, authority, and responsibility of its time-study men since the date of
the hearing in the representation proceeding. The stipulation adverted to above
.was made, however, without prejudice to the right of the parties to introduce
further evidence as to the functions of the time-study men. At the hearing on
the remand, the Respondent adduced considerable evidence on this subject. While
much of this evidence is merely repetitious of evidence received in the representa-
tion case, and reflected in the Board's'findings in that case, some of it is new.
Rather than cull out merely what is new, it is deemed more appropriate to set
.out in one place all findings that may be pertinent to the issue now before the
.Board on remand. The findings set out below are based on the records made at
the various hearings held on the matter, including the two hearings in the repre-
sentation case on February 8, 1946, and on July 5, 1940, and the hearing on the
remand in the complaint proceeding on February 23 to 26, 1949.
The Respondent's production employees are represented for the purposes of
collective bargaining by the International Association of Machinists, an unaffili-
ated union, unconnected directly or indirectly with the charging union in this
proceeding. The Respondent's contract with the Machinists' union prescribes
hourly rates of pay for the production employees. Such rates for the various
classes of work are fixed through collective bargaining between the Respondent
and the Machinists. The contract also provides, however, for a %vage incentive
plan. About 70 percent of the production workers who perform about 90 percent
of the work receive pay in accordance with than plan. The plan enables a sub-
stantial proportion of the production workers to earn more than their hourly rates.
The wage incentive plan contemplates establishment of a time schedule for
.each unit of work in the production process. The unit times are then related to
the hourly base rates established by contract for the class of work involved.
Thus, if after a time-study, the standard time for a particular operation is fixed
at one-half hour, for example, the employee receives one-half of his hourly rate
for each unit of work performed. As a result, the operator is enabled, by expend-
ing greater effort, to earn more than his hourly base rate prescribed in the con-
tract. However, if the worker consumes more than the standard time allotted
for an hour's operation, he is paid at the regular hourly rate. The plan con-
templates that an experienced operator, working at an average piece-work rate
of speed will produce one and two-tenths (1.2) unit hours of work per hour and
thus earn 120 percent of his hourly base rate. Stated more technically, the
basic standard upon which the time schedule rests is the equivalence of the hourly
rate with the amount of good work that an experienced operator, working at an
average piece-work rate of speed, will produce in eighty-three hundredths (.83)
of an hour, including the time necessary for personal needs, fatigue allowance,
delays inherent in work, and tool maintenance.
In connection with the administration of its wage incentive plan, the Respond-
ent employs some 20 time-study men who work under the general direction of
the head of the wage incentive department and 2 time-study supervisors below
him. The time-study men are hourly paid. Time-study data is available for
inspection by the Machinists Union and is not regarded as confidential. And
time-study men do not otherwise have access to confidential information relating
to labor relations in the Respondent's plant. Time-study men are not formally
classified by the Respondent as supervisors, nor do they regard themselves as
such. They have no authority to issue orders to production workers or to direct
877359-50-vol. 87-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such workers in the performance of their work, although they may, and at times
do, in connection with a time-study and in order to provide proper conditions
for the study, request a production supervisor to give appropriate directions to a
production worker whose work is being time-studied. They have no authority to
hire, transfer, suspend, lay off, recall, promote, discharge, assign or discipline
other employees or effectively to recommend such action. The Respondent does
not claim that its time-study men possess any of these attributes of supervisory
authority. It does claim, however, that its time-study men's duties and functions
include within their sweep "authority," within the meaning of Section 2 (11)
of the Act as amended, to "reward" and "adjust" the "grievances" of production
workers. Whether' the time-study men in fact possess such authority is the only
issue with which we are here met. To resolve that issue, it is necessary to con-
sider in some detail the precise scope-and limits-of the time- study men's
duties, functions, and authority.
The principal duty of the time-study man is to gather the factual data upon
which the operation of the wage incentive system rests. This involves, primarily,
determining the amount of time necessary to perform-each unit in the productive
operation in conformity with the basic standard described above. It is the func-
tion of the time-study man to break down each operation (i. e. unit of work)
into its component elements, to time by means of a stop watch each such element,
to make corrective adjustments and allowances. required by the time-study for-
mula, and, after preparing the necessary computations, to make a factual finding
of the standard unit time under study. When the time-study is approved and
put into effect, the time-study man also issues the production foreman an instruc-
tion card that sets forth a description of the operation, including the sequence
of its elements, the machine feeds and speeds, and other information necessary
to enable the operator to complete the work in the minimum time. The instruc-
tion card is made available to the production employees working on the machine
operation therein described.
In determining in accordance with the predetermined formula the amount of
acceptable work that should be performed by an average operator within a given
period of time, the time-study man is called upon to exercise his judgment in
certain respects. Thus, for example, he must be satisfied that the work under
study is being performed under suitable conditions and by the proper methods.
If conditions for a study are unsatisfactory, the time-study man may refuse to
make his study until they are corrected or he is overruled by higher authority.
Similarly, if, in his opinion, improper methods, such as speeds and feeds, are being
used on the operation being studied, the time-study man may suggest changes to
the foreman-although not to the production workers-and if the foreman does
not agree with his suggestion, he is free to carry his suggestion to higher manage-
n:.ent. How many pieces are to be studied before a time-study is arrived at is left
largely to the judgment of the time-study man.
The determination of the various allowances and adjustments required by the
time-study formula also calls for the exercise of judgment in varying degrees.
Certain allowances, such as those for personal needs, fatigue, delays inherent
in work, and tool maintenance, are either fixed or are determinable within estab-
lished limits by objective criteria for which more or less standardized guides
.,re available. The important effort-rating adjustment, however, is based
largely upon the time-study man's own appraisal of how the productive effort of
the particular worker under observation compares to the hypothetical average
effort of an experienced operator as contemplated by the efficiency standard.
In making his effort determination, the time-study man normally uses what is
BROWN & SHARPE MFG. CO. 1043
known as an effort-rating sheet. This contains five elements,' each of which he
must mark as "very poor ," "poor," "fair," "average," "very good," or "excep-
tional" in accordance with his appraisal formed on the basis of his specialized
technical training and practical experience . Time-study men, however , may, and
at times do , go outside the fixed range of the effort-rating sheet , and also occa-
sionally assign an effort rating without using the standard form. The effort
rating is an important factual element in the computation of the standard unit
time, and may vary that time substantially upwards or downwards , with an ulti-
mate effect on the piece rate. The findings as to effort are not, however, matters
of discretion ; rather , they are matters of judgment . Like all other determina-
tions in the time-study, they represent findings of fact. The time-study man is
(expected to form an honest judgment , and, once he has done so , he. has no
choice other than to record his finding exactly as he sees it.
As indicated above, the time-study man has nothing to do with the fixing of the
basic hourly wage of the operator . He is concerned only with determining fac-
tually, and in accordance with a predetermined standard , the time it should
take to perform a given job. He, himself, does not compute the piece rate for a
unit of work . That rate is determined mathematically by others , by relating
the standard time to the basic hourly rate established by the collective bargain-
ing contract. The time-study man when he makes his study does not know, or,
if he does, pays no attention to, the basic hourly rate, nor does he normally
know the particular operators to whom the incentive rate in the process of de-
termination is to apply. In making his study, the time-study man does not
have in mind how much the operators should be paid for the job studied, and
the study is made without any thought of compensating operators more or less
for the work performed. The time-study man is concerned with time, not pieces ;
the only question before him is how long it should take an average compe-
tent operator to perform the job. Nor is the matter of costs in a particular
department the concern of the time-study man ; that is, the problem of the depart-
mental foreman.
Before the time schedule fixed by the time-study man is put into effect, and
before it may be changed, the results must normally be approved by both the time-
study supervisor and by the foreman or subforeman of the production depart-
ment involved. All time studies are subject to review by the time-study super-
visor as to method and results, although the amount of actual review varies with
the experience of the subordinate and the degree of confidence the supervisor
lodges in him. In some cases the review will amount to little more than a
check into the accuracy of the mathematical computations. Certain items on the
time-study report, such as the effort rating given the operator who has been
observed, are findings resting largely on the observation and judgment of the man
who actually makes the study, and the ability of the supervisor to review such
items is thus necessarily limited. But even as to such items, particularly where
abnormalities are indicated, the time-study man may be questioned in detail as
to how lie took his tests or arrived at his figures. The time-study supervisor's
signature on the study, which is required, indicates that he is satisfied that
the time study appears to be correct. The signature of the departmental fore-
man (or subforeman) indicates that he, too, is satisfied with the result and is
prepared to have it put into effect. The foreman's signature is necessary
because he is the person responsible for the costs of operating his department.
Although the foreman may at least temporarily prevent a new time schedule
' The elements are (1 ) technique employed . ( 2) effort applied , ( 3) cooperation dis-
played, (4) rhythm developed, and (5) physically suited.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from going into effect by refusing to sign it , he has no authority to direct the
time-study man. to make any changes in his study. Where differences arise be-
tween the time-study man and the departmental foreman, the time-study man
will refer the matter to his supervisor, and if the differences still cannot be re-
solved after consultation, it is necessary to refer the matter to higher manage-
ment since neither has authority to overrule the other.
In addition to making time studies, time-study men at times perform certain
additional functions. Thus, they may be called upon to do prepricing work.
This involves assisting the planning department to estimate, usually from blue-
prints and without making actual time studies, the probable labor costs of
manufacturing new products. On occasions, time-study men also offer sugges-
tions to management with regard to changing lines of operation, making im-
provements in tools or jigs, or otherwise improving productive efficiency. An-
other function they perform is in connection with allowance cards. These
cards are records of allowances made to operators for additional time required
to perform an operation because of the existence of nonstandard conditions in
the work. In some instances temporary job rates are assigned, which means
that the operator, instead of being paid at the established rate for a particular
job, is compensated on the basis of his average rate for the past 13 weeks.
Uhese allowances are actually initiated and granted by the foreman in charge of
the department. The time-study man's signature operates merely as a further
certification of the fact that the unusual conditions prompting the allowances
were not covered by any previously prepared and filed time schedule and were
not included in the standard rate for the job. Since the time-study man usually
receives these cards after completion of the job for which the additional allow-
ance is sought, he rarely investigates such matters, and his approval of the
foreman's recommendation is generally pro forma.
Finally to be considered is the part played by time-study men in grievances
arising from employee dissatisfaction with a schedule established as a result
of a time study. Such grievances are handled in accordance with the grievance
procedure established by the Respondent's contract with the Machinists' Union.
This calls for four grievance steps, short of arbitration. As appears from
the contract, the Respondent's representative at the first step is the section fore-
man or supervisor ; at the second, the department foreman ; at the third, the
company adjustor; and at the fourth, the personnel administrator. There is
nothing in the contract to indicate that the time-study man is authorized at any
level to adjust grievances on behalf of the Respondent. In actual practice,
where a grievance arises as a result of a time study, it is normal to make a
second time study in the presence of a Machinists' union official. Although the
-department foreman or section supervisor is not always present throughout
the check study, he is always on the floor nearby and is available. At this
stage, the time-study man, by explaining the basis of his findings or by showing
the employee how he might have improved the efficiency of his operation, is
often able to persuade the employee and the union representative that there is
no just cause for complaint. That would end the grievance at its inception.
But even at this stage the time-study man is not authorized to do more than
to supply factual justification and accompanying arguments in support of the
study. He must report the study as he finds it, and is not authorized to depart
from the basic formula or to make concessions in order to compromise the
-dispute.
The time-study man is also present at the joint Machinists' Union-management
-conferences held at the higher procedural steps to which the grievance may
BROWN & SHARPE MFG. CO. 1045
be carried, He may be called upon, at least at the higher levels, to participate
in preliminary conferences with company officials at which the company strategy
at the grievance meeting is discussed and planned. But his role at the grievance-
meetings continues to remain solely that of defender of the study under attack.
He is expected to explain and justify his findings and the methods used by him
in reaching them, and to attempt, if possible, to convince the parties to the
dispute of the accuracy of his result. In that respect, the time-study man's
function is no different than, for example, that of a plant guard who appears
at a grievance meeting to defend some protested action taken with regard to
one of the production workers. Both are expected factually to defend their
actions and to endeavor to "sell" their point of view to the Union.
But the time-study man has no authority to decide on behalf of the Re-
spondent how the grievance shall be disposed of. Such authority is lodged
only in tho company representative who, at the particular level of the grievance
procedure involved, is described in the contract as acting for the Company.
The time-study man does not, except to the extent that he is called upon to' justify
his findings, participate in negotiations looking toward a settlement of the dis-
puted time study. Adjustments which vary from the findings of the time-study
men are negotiated between Machinists' union officials and representatives of
management who handle labor relations matters. Unlike such representatives
of management , the time-study man may not allow such grievances or grant
concessions to adjust or settle the dispute. Nor does it appear that it is his
duty in the grievance procedure to make recommendations in that regard! His
duty, rather, is confined to determining the application of the time-study stand-
ards, and to explaining and justifying his own factual findings with respect
thereto.' In short, he serves in the grievance procedure not as the Company's
adjustor but as its technical expert.
B. Analysis of contentions and concluding findings
It has already been observed that the Circuit Court in its Opinion in this case
found that "the legislative history of the Labor Management Relations Act,
2 John Hall , head of the Respondent ' s personnel department , testified at one point
that "the time-study man's recommendation would go a long way toward determining
the settlement of the case ." His entire testimony reveals , however, that what he had in
mind was not the time-study man's recommendation with regard to the settlement of
the grievance as such, but rather the weight that is given to the time-study man 's asser-
tions with regard to the factual situation. Hall conceded that he knew of no instance
where a time-study man had ever recommended in a grievance case an adjustment at
variance with the time-study man's own factual findings. Hall did refer to situations
where it time-study man had suggested that temporary job rates be assigned on particular
job lots, thereby possibly avoiding the prosecution of grievances. But, as noted above,
the approval of a temporary job rate by a time -study man is merely a factual certification
by him that job conditions on the particular job lot are not such as to fall within an
established schedule. Thus, in the example principally relied upon by the Respondent,
the time -study man , James Headon , had found as a fact , after investigating the job
which had given rise to the complaint , that improper methods were being used , on the job
lot, and consequently had suggested to the production supervisor that he experiment
with a new method and assign a temporary job rate during the experimental period, a
suggestion which was adopted after receiving the required approval of the production
supervisor.
3 Thus, Albert Newton, Jr., head of the Respondent' s time study department, testified
in the representation proceeding that the time-study man is purely a "fact finding man"
and his function in grievance proceedings "doesn't go beyond application of his stand-
ards." Newton further testified that when findings of a time-study man become the
subject of it grievance the time-study man "will frequently participate in the discussion,
but he will not make the adjustment."
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1947, clearly indicates that Congress did not intend to place time-study men
as a class in the supervisory category." But, because the Board's order had
been entered before the passage of that Act, the Board had not had occasion to
consider specifically the Respondent's contention that its time-study men were
"supervisors" as defined in the Act. For that reason the Court considered that
the orderly administration of the present Act called for the Board "to review
the facts and to make findings and reach conclusions" on the question of
whether, under the present statutory situation, "the particular duties of the
Respondent's time-study men, in addition to their primary function of deter-
mining time standards for production operations, are such as to put them in a
category of employees not entitled to the organizational privileges of the Act as
it now stands." Both the Respondent and the General Counsel agree in their
briefs that the precise issue now before the Board is to determine whether the
Respondent's time-study men have "authority" to "reward" or to "adjust" the
."grievances" of their fellow employees, or effectively to recommend snch ac-
tion, within the intendment of the supervisory definition contained in Section 2
(11) of the Act as amended.
The issue presented does not in its broad aspects come to the Board as a
matter of first impression. Since the effective date of Labor Management Re-
lations Act, 1947, a number of cases involving the same general issue has
reached the Board. In these cases the Board has uniformly found that time-
study men, rather than being supervisory employees as defined in Section 2
(11) of the Act as amended, are professional employees as defined by Section 2
(12), and, as such, are "employee:" within the meaning of Section 2 (3) who
may properly constitute an appropriate unit for the purposes of collective
bargaining. See, e. g., I'. W. Sickles, 81 NLRB 390; Timken Detroit Axle Com
paivy, 80 NLRB 1075; Detroit Harvester Co., 79 NLRB 131.6; Worthington
Piomp & Machinery Corp., 75 NLRB 678. Close comparison between each of the
cited cases, considered separately, and the instant case reveals, to be sure, cer-
tain defferences in the functions, duties, and authority of the, time-study men
involved in the compared gases. But when the cited cases are considered as a
group, it is evident that such differences as do appear are neither substantial
nor controlling. Contrary to the assertion of the Respondent, the instant case
cannot, I am persuaded, be distinguished on principle from those cited.
To support its contention that its time-study men have "authority" to "reward,"
the Respondent in its brief emphasizes that these employees may require an
operation under time study to be performed by the correct methods ; that they
establish an effort rating on the time study, that they establish suitable allow-
ances for such conditions as personal needs, fatigue, delays, and tool mainte-
nance ; and that they select the portions of an operation recorded in a time-study
for which an incentive rate will be computed. These, however, are merely part
of the time-study men's primary function of determining time standards ; and
they are not uncommon to the work of time-study men as a class." The per-
formance of these functions is essential to the fact-finding process under which
time-study men determine, pursuant to a formula supplied by the Respondent,
the amount of time which it should take an experienced operator working at
an average rate of speed to perform a given operation.
It is true, as the Respondent argues, that the manner in which the time-study
man gathers and analyzes his factual information determines the incentive rate
4 The work of the time -study men in the Timken Detroit Axle Company, the Detroit
Harvester Co., and the Worthington Pump & Machinery Corp. cases, supra, encompassed
substantially similar functions.
BROWN & SHARPE MFG. CO. 1047
finally arrived at, and in a sense may thereby affect the compensation of the
production workers. But in making his determination of the standard time,
the time-study man is merely engaged in a fact-finding process, he is neither
authorized to, nor does he, make that determination with a view to providing
production workers with a "reward" in the commonly accepted sense of that
term t The reward that enures to a production employee flows from the nego-
tiated base rate, the operation of the established wage incentive plan itself,
and such extra effort as the production employee may apply in the performance
of his own work. It is not, as contended by the Respondent, a benefit provided
by the time-study man. For the time-study man is uninterested in the amount
of compensation the production employee may receive. He is concerned, rather,
solely with fixing an average or standard time in accordance with an established
formula-a formula which he must apply in accordance with his honest appraisal
of the facts as they are, and which he is not permitted to vary.
The Respondent's argument assumes that the term "reward" contained in
Section 2 (11) may properly be read in vacuo, and, so read, should be deemed
to encompass any function that may in any way affect the compensation of
production employees. Such a construction is at variance with the intent of
Congress. It is clear from, the legislative history that Congress not only
intended to exclude time-study men as a class from the definition of "supervisor,"
but that it meant that term to be confined to "bona fide supervisors," that is to
say, to "individuals generally regarded as foremen and employees of like or
higher rank."' The word "reward" in Section 2 (11) must be read in pan
materia with the. accompanying words, "hire, transfer, suspend, promote, assign,
discipline" and "adjust grievance." In that context it can be construed to refer,
as the sponsors of the legislation expressly stated, only to powers normally
exercised by foremen or persons of like or related rank, such as the power to
grant or recommend merit wage increases, which the Respondent's time-study
men, unlike some foremen, do not possess.
Considerable stress is placed by the Respondent in its brief upon the fact that
its time-study men, in the performance of their work, are required to use their
independent judgment, and that their work is not merely of a routine and clerical
nature. The record supports a finding to that effect. And it is also clear from
the record that the work of a time-study man in a plant such as the Respondent's,
where a large percentage of the production employees are compensated on an
incentive basis, is a highly important and responsible function. But it does not
follow therefrom that the time-study men are supervisory employees with the
power to "reward" other employees within the meaning of the Act. As the
Circuit Court properly noted, in its Opinion in this case, "It is not of consequence
that the Respondent's time-study men have been found to possess authority to
5 Funk and Wagnalls , New Standard Dictionary of the English language ( 1937 ), p. 2105,
defines "reward" as "something given or obtained in acknowledgment of merit, service or
achievement , recompense for good , a prize."
6 Senator Taft, explaining the resolution in conference between the House and Senate
.bills, stated in part (93 Cong. Rec. 6422)
Both the House bill and the Senate amendment excluded supervisors from the
individuals deemed to be employees for the purposes of the Act. There was a sharp
divergence between the House and the Senate , however, with respect to the occupa-
tional groups which fell within this definition . The Senate amendment , which the
-conference ultimately adopted, is limited to bona fide supervisors . The House had
included numerous other classes . . . who fix the amount of wages earned by other em-
ployees such as . . . time-study personnel . The Senate amendment confined the defini-
tion of supervisors to individuals generally regarded as foremen and employees of like
or higher rank. ( Emphasis supplied.)
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use their independent judgment. with respect to some aspects of their work, the
decisive question is whether they have been found to possess authority to use
their independent judgment with respect to the exercise by them of some one or
more of the specific authorities listed in Section 2 (11) of the Act as amended."
For reasons already indicated, it is found that time-study men do not "reward"
or recommend such action within the meaning of Section 2 (11), and, hence,
exercise no independent authority in that connection.
The same is true with regard to the alleged power of the Respondent's time-
study men to "adjust" grievances. To support its contention that its time-study
men do exercise such powers, the Respondent points not only to the time-study
men's participation in the grievance procedure in cases involving incentive rates.
It stresses also certain additional considerations, such as the importance to
personnel relationships in having time-study men inspire confidence in produc-
tion employees with regard to the fairness of their work, the constant pressure
applied upon them by the Machinists' Union to increase incentive rates, and the
importance of their position in preventing disputes and grievances from arising
and growing into major personnel problems. These additional considerations
merely support the finding made by the Board in the representation proceeding,
that these employees are highly important technical employees, in whom the
Respondent must impose trust and confidence. They do not, however, establish
that the time-study men are responsibly authorized to "adjust" grievances within
the cleaning of Section 2 (11).
As for their participation in grievances, the functions of the Respondent's time,
study men do not appear to be substantially different from those engaged in by
the time-study men in the F. W. Sickles Co., and the Timken-Detroit Axle Co.
cases, supra. Essentially, the role of the time-study man in the Respondent's
grievance procedure is that of an expert fact finder who is expected, additionally,
to explain and justify his technical findings and, if possible, to convince the
grieving party of their accuracy. It is true that, by satisfactorily explaining his
findings and thereby convincing the grieving party of the futility of pressing the
grievance further, the time-study man may, and at the early stages of the
grievance procedure often does, succeed in having grievances disposed of. But
that does not establish that the time-study man is authorized to "adjust" grievance
within the meaning of that term as used in the statute.
Authority to "adjust" encompasses more than the power to explain and justify
one side of a grievance; it embraces, also the power to allow the grievance, to
decide authoritatively not to allow it, Qr to negotiate a compromise of the
difference. Under the Respondent's contract with the Machinists' Union, as well
as in.practice, the time-study man is not the authorized company representative
who ultimately determines whether a grievance is to be allowed or disallowed.
Nor is he authorized to compromise or to negotiate for the settlement of the
grievance on a basis at variance with his own factual report. The primary
function of the time-study man is to state and defend his own findings, not to
form a judgment and reach a determination on behalf of the Company on how
the grievance shall be disposed of. Such judgment and determination must be,
and is, based, not alone on the time-study man's report, but on an analysis and
evaluation of the conflicting positions in the grievance, including all evidence
presented by both sides as well as any other considerations that may be pertinent,
even though they may not be directly related to the time-study facts themselves.
Under the circumstances, it cannot be concluded that the time-study man,
with his limited fact-finding role, adjusts grievances. And while it appears that
in the time-study grievances, the Respondent relies upon and gives substantial
BROWN & SHARPE MFG. CO. 1049
weight to the reported findings and arguments of its time-study man, just as,
for example, it would give weight to the report of a plant guard called in to
justify his position on a grievance growing out of some action on his part, it does
not follow that the time-study man effectively recommends the adjustment of
the grievances. Confined as he is to a factual presentation and justification of
his own observations, calculations, and methods, and possessing no authority to
make recommendations at variance therewith, the time-study man cannot be
said to recommend adjustments. As already indicated, authority effectively to
recommend adjustments, just as authority to "adjust," involves more than merely
the power to suggest, or even urge, that the time-study man's own findings be
approved.
For the reasons stated, and also because, as hereinbefore noted, the legislative
history discloses that it was Congress' intent to confine the supervisory definition,
contained in Section 2 (11), to bona fide supervisors who, unlike the time-study
men here, are generally regarded as foremen, or employees of like or higher
rank, it is found that the Respondent's time-study men do not possess "authority"
within the purview of that section to "adjust grievances" 6r "effectively recommend
such action," or, for that matter, any other supervisory authority.
Aside from its argument that its time-study men are supervisors within the
statutory definition, the Respondent makes the contention in its brief that these
employees occupy confidential and managerial positions, and, therefore, should
not be regarded as "employees" covered by the Act. Although this contention
appears to be outside the issue remanded to the Board, and is one, moreover,
that was specifically considered and decided by the Board in its Supplemental,
Decision in the representation proceeding, the question raised has been recon-
sidered here in the light of the additional record made on the hearing on remand.
In its prior decision the Board found: "Although the time-study men are highly
important technical employees in whom the Company places considerable trust
and confidence and upon whose judgment it relies , we are of the opinion, and
we find, that they are not `managerial' or `confidential' employees . ..' After
consideration of the additional evidence adduced, that finding is adhered to.
On the basis of the entire record, it is concluded and found that the Respond-
ent's time-study men are not supervisors within the meaning of Section 2 (11) of
the Act as amended, although, by reason of their training and responsibilities,
they are professional employees within the meaning of the amended Act. It is
further concluded and found that the individuals here in question are "employees"
within the meaning of Section 2 (3) of the Act, as amended, and, as such, are
entitled to the organization privileges of the Act as it now stands.
RECOMMENDATIONS
It is recommended that the Board adopt the findings, conclusions, and recom-
mendations contained in the undersigned's Intermediate Report, dated February
7, 1947, as supplemented by the findings and conclusions contained in this Sup-
plemental Intermediate Report, and that the Board reinstate in all respects its
Order herein, dated June 31, 1.947, which, pending proceedings on remand, was
set aside by the decree of the United States Circuit Court of Appeals for the
First Circuit.
As provided in Section 203.46 of the Rules and Regulations. of the National
Labor Relations Board, any party may, within twenty (20) days from the
date of service of the order transferring the case to the Board, pursuant to
Section 203.45 of said Rules and Regulations, file with the Board, Washington
25, D. C., an original and six copies of a statement in writing setting forth such
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceptions to the Supplemental Intermediate Report or to any part of the record
or proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in suppol•t thereof ; and any
party may, within the same period, file an original and six copies of a brief in sup-
port of the Supplemental Intermediate Report. Immediately upon the filing of
such statement of exceptions and/or briefs, the party filing the same shall serve
a copy thereof upon each of the other parties. Statements of exceptions and
briefs shall designate by precise citation the portions of the record relied upon
and shall be legibly printed or mimeographed, and, if mimeographed, shall be
double spaced. Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203.55. As further pro-
vided in said Section 203.46, should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of service of the order transferring the case to the
Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 28th day of June 1949.
A1THUx LEFF,
Trial Examiner.
I