Doak Aircraft Co., Inc. .

National Labor Relations Board - Board Decisions

Jan 21, 1954

107 N.L.R.B. 924 (N.L.R.B. 1954)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DOAK AIRCRAFT CO., INC. and LYLE R. STUMP, Petitioner
and INTERNATIONAL ASSOCIATION OF MACHINISTS, DIS-
TRICT LODGE NO. 720. Case No. 21-RD-190. January 21,
1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before H. C. Bum-
garner , hearing officer . The hearing officer ' s rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
2. The Petitioner asserts that the Union is no longer the
representative of certain employees of the Employer, as
defined in Section 9 (a) of the Act. The Union is a labor
organization recognized by the Employer as the exclusive
bargaining representative for the employees designated in
the petition.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9 ( c) (1) and Section 2 (6) and ( 7) of the
Act, for the following reasons:
The petition in this case was filed by Lyle Stump, a leadman
in the employment of the Employer. The Union moved to
dismiss the petition on the ground , among others , that the
Petitioner is a supervisor as defined in the Act and is there-
fore ineligible to represent the Employer ' s employees in this
proceeding. The Employer and the Petitioner oppose the
motion to dismiss and contend that neither Stump nor his
fellow leadmen are supervisors.
The Employer operates an airplane assembly plant. The
supervisory hierarchy at the plant is headed by a general
manager who is responsible to the president of the Employer.
Under the general manager is a plant production superinten-
dent and an assistant . Below the level of assistant plant
superintendent are 2 foremen , each of whom supervises a
separate department . One foreman is assigned to the target
department where he has from 4 to 6 employees under his
supervision while the other foreman is head of the shipping
department which has a complement of 3 or 4 employees.
There are approximately 100 other factory employees who
work under the immediate direction of the Employer's 9
leadmen. There are no intermediate supervisors between
these leadmen and the assistant superintendent. The leadmen
are paid approximately 15 cents an hour more than the
highest paid employee in their crew.
The Petitioner, whose duties and responsibilities the parties
agree are typical of all the leadmen with 1 exception, works
107 NLRB No. 189.
DOAK AIRCRAFT CO., INC. 925
in the assembly department with a crew of from 12 to 13
employees . He trains new employees and assigns them to a
particular operation , lays out the work and transfers the men
in the crew from one job to another as the work progresses
and to expedite rush jobs , checks the work of each employee
before passing it on to inspection , and "signs off" the work
order when it is completed . The amount of time the Petitioner
also spends in actually working on production is a matter of
dispute in the record . It is clear , however, that while the
greater portion of the Petitioner ' s time is spent in working
with his crew or by himself on material going through the
plant, only 10 to 15 percent of his time is spent in actual work
on production material as an individual . There is some
conflict in the record also as to the status of the leadmen,
including the Petitioner , with regard to the periodic merit
reviews made of the Employer ' s employees . This system,
designed to reward workers for increased efficiency , provides
for review of each employee every 16 weeks as to quality of
work , quantity produced , job knowledge , dependability, and
cooperation , with 8 different ratings for each category.
According to announcements made to the employees by the
Employer , this grading is "initially made by the appropriate
foreman and leadman" and then reviewed by higher super-
vision. The Petitioner testified that it was part of his re-
sponsibility to make such reviews but that he had actually
filled out the required form only once although on other
occasions he was asked by the assistant superintendent as to
abilities and production of men in his crew.
The Union was certified as representative of the Employer's
employees in June 1952 , following a consent election . At that
time the parties stipulated that leadmen were included in the
unit but further stipulated that four of the leadmen were
supervisors and excluded from the bargaining group. One of
these individuals is still employed by the Employer and the
positions of the others were filled by promotion upon their
departure . On the other hand, all the leadmen are included
in the plant seniority listing.
Although our dissenting colleague would find that the Peti-
tioner is not a supervisor on the basis, inter alia, of "fairness
and common sense justice," we believe that the determination
of the Petitioner ' s status must rest upon the statutory defini-
tion, which is explicit in the case of supervisors , rather than
on any rule of thumb which we might wish to adopt in the
absence of legislative instruction . Moreover , we are unable
to discern any evidence in the record, despite the statements
made in the dissenting opinion, that the Union has " consistently
asserted its right to represent the employees who filed the
petition " or that the Union "may have won the election with
the help of the votes " of these leadmen.
Section 2 ( 11) of the Act , as we have noted on numerous
occasions , sets forth the precise criteria which the Congress
337593 0 - 55 - 60
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered determinative of supervisory authority. Using
that section as the measure herein, it is clear from the record
that the leadmen, including the Petitioner, do not have au-
thority to hire, discharge, or effectively to recommend such
action . On the other hand , however , there is considerable and
persuasive evidence that the leadmen "responsibly direct"
the work of employees in their crew. In this respect we note
that , other than the leadmen, there is no intermediate super-
vision between the 100 factory employees in a number of
separate departments and the assistant superintendent al-
though other departments are under acknowledged super-
visors. Corroborative of the existence of this latter authority
is the small amount of actual production work done by the
leadmen and the testimony and supporting evidence showing
participation by the leadmen in the grading of employees for
merit raises . Finally, even though the mere private agreement
of the parties cannot be binding upon the Board in view of the
requirements of Section 2 (11), we note that although the
category of leadmen was apparently included in the unit on a
previous occasion , the parties simultaneously designated
almost 50 percent of those leadmen as supervisors and ex-
cluded them. Accordingly, as the record shows that the
Employer's leadmen have authority responsibly to direct the
work of subordinates , we find that the Petitioner is a super-
visor as defined in the amended Act.'
As we have found that the Petitioner is a supervisor as
defined in the statute , it is clear that he was inelgible to file
the instant petition. Such ineligibility is neither a technicality
nor an effort to forestall employee elections. Rather it is a
long-standing rule of this Board based on substantial statutory
considerations.' The "employees" of this Employer or of
any other may petition for the certification or decertification
of a union representative under the provisions of Section 9 (c)
(1) (A). But the Act, and the legislative history which preceded
it, contain ample proof that one purpose of the statute was to
clearly delineate supervisors as representatives of manage-
ment. The Act further specifically provides that such super-
visors are to be barred from participation in union activities
with rank-and-file employees because of the possibility of a
divided allegiance arising therefrom. By providing a separate
and distinct method under Section 9 (c) (1) (B) by which this
Employer or others could test the representative status of
unions , the conclusion is inescapable that Congress intended
to preclude employers or their supervisory staffs from filing
the decertification action set aside for the use of "employees."
As the Board has previously stated, "To permit supervisors
1 See Kennecott Copper Corporation, 98 NLRB 75; Drug Package Co., Inc., 101 NLRB 1123;
and Ideal Roller & Manufacturing Company, 104 NLRB 931.-
2 See Clyde J. Merris, 77 NLRB 1375.
DOAK AIRCRAFT CO., INC. 927
to act as employee representatives would therefore defeat
the purpose of the Act."3
The mere fact that a number of employees ostensibly
supported the act of this supervisor does not cure the peti-
tion's invalidity even if we assume, as is questionable in the
case of a petition circulated by a supervisor, that their
concurrence was uncoerced to any degree, The number of
participants does not purge the illegality of an act where the
illegality is inherent in the act's inception. The Board has
consistently ruled that such invalidity exists where a super-
visor assists in the securing of a labor organization ' s showing
of interest.4 Yet our dissenting colleague's opinion would
logically require the Board similarly to disregard supervisory
participation in connection with representation petitions on
the theory that the election is all that counts. But for the
Board to take such a position would inevitably result in
opening the gates to a host of subtle or express employer
pressures under the cover of such supervisory participation.
Where an election is available upon the proper petition of
either employees or management, it is neither necessary
nor advisable to grant such a referendum through a petition
which infringes the rights of either party. Accordingly, we
shall dismiss the petition filed herein.'
[The Board dismissed the petition.]
Chairman Farmer, dissenting:
I believe that the record evidence on the alleged supervisory
status of leadmen in this assembly plant presents at best a
very doubtful picture of their supervisory status. On the
record as a whole, I am convinced that Lyle Stump, the
leadman who filed this petition, is not a supervisor as defined
in the Act and was, accordingly, eligible to file the petition.
It seems to me, as a matter of fairness and common sense
justice, and in accord with the clear statutory intent, that a
union which has consistently asserted its right to represent
the employee who filed the petition and others in like position
should have no standing to contest his petition (supported by
at least 30 percent of his fellow workers) to unseat the Union.
For all -we know, the Union may have won the election with
the help of the votes of the very employees who the Union
now asserts , and the majority of the Board finds, cannot
avail themselves of their statutory right to file a petition to
determine in timely fashion whether or not the employees
3Clyde J. Merris, supra.
4See Toledo Stamping and Manufacturing Company, 55 NLRB 865; Alaska Salmon Industry,
Inc., 78 NLRB 185; American District Telegraph Company of Pennsylvania, 89 NLRB 1635.
5In view of this disposition of the case, the Board does not rule as to the merits of the
Union's remaining contentions.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still wish to be represented by the Union. If ambiguity exists
as to the supervisory status of leadmen , it is resolved to
my satisfaction by the agreement made between the Union and
the Employer, only a year ago, that leadmen as a category
were not supervisors and could vote in an election, as in
fact they did, plus the fact that all leadmen are listed on the
Union's plantwide seniority list.
It seems quite clear to me that the majority here is strain-
ing to invoke a technicality in order to deny a substantial
group, at least 30 percent of the employees, an opportunity to
determine at an appropriate time whether the majority of the
employees still want to be represented by the Union. All
that we are called upon to determine is whether or not a free
and secret-ballot election should be conducted. Such an
election will be the test of the validity of the decertification
movement. I do not believe that this conclusive test should be
evaded by a hypertechnical dismissal of the petition. If the
Union is the majority representative, as it maintains it is,
the election will prove it. If it is not, the statute gives the
employees the express right to repudiate it at the polls.
Where in fact the decertification petition is inspired and filed
by supervisory personnel, a different situation is presented;
the discussion of this type of case in the majority opinion
therefore has no relevance here.
The extreme technicality of the majority position is exem-
plified by the fact that we would not hold a decertification
election on the unsupported petition of this leadman or any
other employees. The fact is that this petition had to be sup-
ported by the signatures of at least 30 percent of the rank-
and-file employees, and the record shows that actually 41
percent of the employees do support the petition. It seems to
me that the denial of this petition, on these facts, is an
unwarranted action.
I would, therefore, honor the petition and direct an election
in this proceeding.
Member Rodgers took no part in the consideration of the
above Decision and Order.
HALEY CANNING CO. and AUDRA CHAPMAN, Petitioner and
LOCAL 809, CANNERY WAREHOUSEMEN, FOOD PROCES-
SORS, DRIVERS & HELPERS UNION, AFL.' Case No.
36-UD-13. January 22, 1954
DECISIONS AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (e) of the National
Labor Relations Act, a hearing was held before Arthur J.
'Hereinafter called the Union.
107 NLRB No. 170.