Eureka Williams Corp.

National Labor Relations Board - Board Decisions

May 1, 1946

67 N.L.R.B. 1091 (N.L.R.B. 1946)

In the Matter of WILLIAMS OIL-O-MATIC DIVISION OF EUREKA
WILLIAMS CORPORATION and INTERNATIONAL ASSOCIATION OF MA-
CHINISTS , LODGE 1004
Case No. 13-R-3074.-Decided May 1, 1946
Kirkland, Fleming, Green, Martin & Ellis, by Mr. Emil F. Meier, of
Chicago, Ill., for the Company.
Mr. Carl Hu/lndor f s, of Washington, D. C., Mr. E. J. Reid, of Chi-
cago, Ill., and Mr. Ned L. Sweeney, of Bloomington, Ill., for the Union.
Mr. Harry W. Clayton, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by International Association of Machin-
ists, Lodge 1004, herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of
employees of Williams Oil-O-Matic Division of Eureka Williams
Corporation, Bloomington, Illinois, herein called the Company,' the
National Labor Relations Board provided for an appropriate hear-
ing upon due notice before Robert R. Rissman, Trial Examiner. The
hearing was held at Bloomington, Illinois, on January 30 and 31, 1946,
and February 1, 1946. The Company and the Union appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Company moved to dismiss the petition
on the ground that the unit sought was composed of persons who are
not employees under the Act. The Trial Examiner referred this
motion to the Board. For reasons stated, infra, this motion is denied.
The Trial Examiner's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed. All parties were afforded, an
opportunity to file briefs with the Board. The Company's request
for oral argument is hereby denied.
Upon the entire record in the case, the Board makes the following :
i The petition and other formal papers were amended at the hearing to show the correct
name of the Company.
07 N. L. R. B, No. 140.
1091
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Eureka Williams Corporation, a Michigan corporation, with its
main office at Detroit, Michigan, operates plants at Detroit, Michigan,
and Bloomington, Illinois. At its plant at Bloomington, Illinois,
known as the Williams Oil-O-Matic Division, which is the only plant
involved in this proceeding, the Company manufacturers, sells and
distributes automatic oil burners, commercial refrigeration units, and
air-conditioning equipment.
The principal raw materials used at this plant are ferrous and non-
ferrous metals. During the year preceding the date of the hearing,
the value of raw materials purchased for use at this plant was in excess
of $3,000,000. More than 50 percent of such materials was delivered
to this establishment from places outside the State of Illinois. During
the war the major portion of the Company's business at this plant was
the manufacture of war materials. Annual sales during that period
were in excess of $7,500,000. Approximately 98 percent of the war
sales was to the United States Government, and the products were
shipped from the plant at Bloomington, Illinois, to places throughout
the United States and to foreign countries. The value of sales of
civilian products produced at the plant will be in excess of $5,000,000
per year. More than 50 percent of such production will be shipped to
places outside the State of Illinois.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Lodge 1004, is a labor
organization admitting to membership supervisory employees of the
Company?
III. THE QUESTION CONCERNING REPRESENTATION
On or about May 7, 1945, the Union by letter asked the Company to
recognize it as the exclusive bargaining agent for certain supervisory
employees. The Company notified the Union that it would not giant
recognition to it as the bargaining agent of supervisory employees.
The Company contends that its supervisors are not employees within
the meaning of the Act. The question of the status of foremen under
the Act has been considered in a number of Board and Court decisions.
2 International Association of Machinists , Lodge 1000 , hereafter known as Lodge 1000,
represents all the production and maintenance employees of the Company, excluding super-
intendents , foremen , watchmen , and supervisory employees , full-time office employees, and
tanners doing construction work who are covered by an agreement with Turners ' Local No. 1.
WILLIAMS OIL-O-MATIC DIVISION 1093
Both the Board 3 and the Courts' have held that, in their relation to
their employer, foremen and other supervisors are employees within
the definition contained in Section 2 (3) of the Act. Accordingly, we
find that for the purpose of this proceeding the supervisors are em-
ployees within the meaning of the Act.
Information submitted at the hearing to the Trial Examiner indi-
cates that the Union represents a substantial number of employees in
the unit hereinafter found appropriate.'
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 ; TIIE DETERMINATION OF REPRESENTATIVES
The operation of the Williams Oil-O-Matic Division is in charge
of the following officials: There is a works manager (who has an
assistant) who reports to the president of the Company. Likewise
reporting to the president is the vice president in charge of the Wil-
liams Oil-O-Matic Division who has jurisdiction over the service and
repair department. This department is headed by the manager of
service and repair who supervises one general foreman and two fore-
men. The director of engineering research, who is responsible for the
work of the experimental shop, various engineers, laboratory techni-
cians, and draftsmen, also reports directly to the president. One of
the subordinates of the director of engineering research is the general
foreman, experimental shop, whose status is in issue in this case.
Under the works manager are six departments in four of which most
of the general foremen and foremen involved in this case are em-
ployed.' These four departments are headed by department heads
known as the shop superintendent, master mechanic, director of plan-
ning, and plant engineer. Independently of the departmental set-up,
the chief inspector reports directly to the works manager.
The Union seeks a unit consisting of the foremen and general fore-
men who are subordinate to the department heads mentioned above,
3 Matter of doss Manufacturing Company , et at, 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 It, B 294; Matter of The Midland Steel Products Company, Parish and Bingham
Division, 65 N. L. R B. 997; Matter of Simmons Company , 65 N. L. R B. 984 , Matter of
Jones d Laughlin Steel Corporation , Vesta-Shannopin Coal Division, 66 N L R. B. 386,
Matter of Federal-Mogul Corporation, 66 N L . R B. 532 ; Matter of Kelsey -Hayes Wheel
Company, 66 N L. R B 570; Matter of The Celotex Corporation, 66 N L. R. B. 744.
4 N. L R. B. v. Armour d Company , 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. Skinner d
Kennedy Stationery Company, 113 F. (2d) 667 (C C. A. 8).
" The Trial Examiner checked the Union 's dues ledger and found that all persons in the
unit sought by the Union are members of it.
There are approximately 27 employees in the alleged appropriate unit.
6 The two departments not involved in this proceeding are personnel and purchasing.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including the manager of methods and tool design, who has a posi-
tion equivalent to that of general foremen in the plant engineer's
department. In addition the Union would include the chief inspector
and his assistant, the general foreman and foremen in the service and
repair department, and the general foreman, experimental shop. It
would exclude all department heads and higher-ranking supervisors
and executives and also the traffic manager, who is a subordinate of
the director of planning. If the Board decides, however, that the
traffic manager should be in the unit, the Union will admit him to
membership.
In addition to its initial contention upon which a determination
has been made in Section III, above, the Company urges that none of
the supervisors should be represented by the Union which is a Lodge
of the International Association of Machinists to which the local union
(Lodge 1000), representing the rank and file employees, belongs; and
that, in any event, the general foremen and chief inspector should not
be represented by the Union.7
In the recent Jones d Laughlin 8 case, we considered in full the sev-
eral arguments directed against certifying as a bargaining representa-
tive of foremen a union affiliated with one which represents rank and
file employees. There the majority directed an election to determine
whether or not certain supervisory employees desired to be represented
by a union affiliated with one which also represented rank and file
employees. We fail to find any reason for differentiating the present
proceeding from the Jones e i Laughlin case."
7 In its brief , the Company objects to including the general foremen and chief inspector
in the same "unit" as the foremen. However, from the argument which followed in the
brief and the statement by the Company's representative at the hearing , it appears that
the real objection of the Company in this respect is to the representation of the general
foremen by the same union which represents the foremen.
The Union , at the hearing , stated that it would have no objection if the Board found
that the general foremen should be in a separate appropriate unit . However , in its brief,
it argued that general foremen and foremen should be included in the same unit.
s66N . L.R B 386
e In the Jones & Laughlin case the majority , in considering the effect of its decision
upon the relation of management with its foremen , indicated that contract clauses can
guarantee the maintenance of discipline by supervisors without fear of reprisal by the
rank and file acting through its union In this case, it is interesting to note that the
Executive Council of the International Association of Machinists limited the authority of
the member lodges in disciplining supervisor -members of rank and file unions by the
issuance of a circular dated October 19, 1945 , which reads as follows .
The practice in some localities , of Lodges disciplining members holding supervisory
positions , was thoroughly considered by the Executive Council at a recent meeting.
A review of several cases indicated that instead of handling as a grievance with
management , alleged abuse of authority , non-adherence to contract provisions and
discrimination against members on the part of a supervisor , charges were preferrred
against the supervisor and discipline imposed by membership vote.
Recognizing that members discharging supervisory duties are under the direction of
and responsible to management, and not to be held accountable by the members under
their supervision , for carrying out orders, the Executive Council adopted the following
motion : Motion . That a local or district lodge is without authority to penalize a
member in a supervisory capacity because of alleged improper conduct in discharge
of his supervisory duties
WILLIAMS OIL-O-MATIC DIVISION 1095
In connection with the Company's other contention, it.does appear
that the status of the general foremen differs in some respect from that
of the foremen. About half the general foremen directly supervise
rank and file employees, whereas others have subordinate foremen who
in turn supervise the rank and file. Nevertheless, the general foremen
select and supervise the foremen; the former are paid on a salary basis,
the latter, in most cases, at an hourly rate. For the regular work
week at the straight rate, the general foremen receive almost twice
as much as the foremen; however, the foremen are paid for overtime,
and some of them, during the war, received more money than the gen-
eral foremen. Both general foremen and foremen participate in the
first step of the grievance procedure. A witness for the Company
testified that the general foremen are called in on later steps in the pro-
cedure, but other testimony indicated that this has been very infre-
quent. Both the general foremen and foremen may reject new em-
ployees within a 60-day trial period, and neither group has ever parti-
cipatd in contract negotiations with the Union representing the rank
and file employees. Most of the general foremen have been with
the Company for many years, and the foremen are customarily selected
from the rank and file employees. The general foremen regularly
attend meetings on operating problems with employees at higher su-
pervisc►ry levels; the foremen do not attend these meetings unless called
in by the general foremen. However, in some departments the de-
partment head regularly holds meetings which are attended by both
general foremen and foremen. During the war, two of the general
foremen, on instructions from their superiors, made several trips to
other plants as the Company's representatives. They were chosen
because of their mechanical knowledge, and the testimony indicates
that they generally secured operating data and brought it back to the
plant for consideration. Also during the war, there was, a level of
employees, who had the title of supervisor, under the foremen. With
reconversion these positions have been abolished. However, in the
changeover from war to peace-time work and with the transfer of the
production of vacuum cleaners to the Williams Oil-O-Matic Division
at Bloomington from its other plant, the Company anticipates an in-
crease of its employees. The number of general foremen will remain
stable at 8, but the foremen are expected to increase from 16 to 50 or
75. The Company was unable to state exactly when the increase will
become effective. Despite the differences existing between the gen-
eral foreman and foremen, we reject the Company's contention that
the general foremen are outside the ambit of the Act. Our finding in
Section III that the supervisors considered in this proceeding are em-
ployees within the meaning of the Act applies with equal force to the
general foremen as well as to the foremen.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, we believe that the community of interests created by
the common backgrounds, interests, and problems of the two levels
of supervision made it inadvisable for the Board to require that they
be segregated into two separate units for bargaining purposes. How-
ever, a majority of the Board 10 believes that before they are included
in the unit with the foremen, the general foremen should be given the
opportunity by separate voting to determine whether or not they desire
to be in the same unit with the foremen. Accordingly, we shall not
make a final unit determination now, but will be guided by the desire
of the employees involved as expressed in the elections ordered. In
the event that the employees voting separately in the groups described
hereinafter select the Union, they shall together constitute a single
appropriate unit.
There remain for consideration certain fringe employees :
Chief inspector: The Company asserts that this employee is on a
supervisory level above that of the general foremen and his authority
comparable to that of the department heads who are agreed exclu-
sions. The Union urges that he should be included in the appropriate
unit. This employee supervises 1 assistant chief inspector, who is on
the same supervisory level as a foreman, 3 leadmen, and approximately
30 inspectors. The leadmen and inspectors are covered by the contract
with the Union's affiliate, Lodge 1000, representing the rank .lnd file
employees. The chief inspector reports directly to the works manager
or assistant works manager instead of to the shop superintendent, so
that the works manager will receive the independent judgment of the
chief inspector. He is in a building separate from the inspection
department, and his office is located with the offices of the employees
at the higher supervisory levels who are agreed exclusions. The
chief inspector is paid on a salary basis, and the assistant chief inspec-
tor, at an hourly rate. Although the Company claims that the chief
inspector is on the same supervisory level as the department heads,
it agrees that his salary is closer to the level of salaries received by the
general foremen than it is to the average of the salaries received by
those employees. During the war the chief inspector made several
trips to other plants for the purpose of gaining knowledge concern-
ing the inspection of various devices or to witness interchangeability
tests to determine whether parts manufactured by the Company would
interchange with those of other companies. Some of these trips were
made alone, and several, in company with the vice president or direc-
tor of engineering research. We find that the chief inspector is at a
supervisory level comparable to that of the general foremen; and,
accordingly, we shall include him in the voting group with the general
10 Chairman Herzog and Member Reilly.
WILLIAMS OIL-O-MATIC DIVISION 1097
foremen,11 and we shall include the assistant chief inspector with the
foremen.
General foremen, experimental shop: This employee is also called
manager of the experimental shop. The Company urges his exclusion,
and the Union his inclusion , in the unit. He is under the direct super-
vision of the director of engineering research, who is also in charge
of the research, project, test, and electrical engineers, the chief drafts-
man, and the laboratory technicians. This employee is the only one
sought in this department. He supervises eight mechanics and tech-
nicians (of whom some are covered by the contract with the union
representing the rank and file and some are not) who are especially
skilled in building apparatus and who do experimental work on new
designs and on improvements of old models. The work of this em-
ployees and those he supervises is performed directly in aid of tech-
nical employees, i. e., the engineers and technicians who are under the
immediate supervision of the director of engineering research. In
some instances the engineers and technicians take up their problems
with the general foreman, experimental shop ; in others they deal
directly with the mechanic or technician assigned by the general fore-
man to the particular job. These activities are coordinated by the
general foreman. Inasmuch as the interests of the general foreman,
experimental shop, lie generally with the technical employees rather
than with the production and maintenance employees, we shall exclude
him from the unit 12
Manager of methods and tool design: 13 The Company wishes to
exclude, the Union to include, this employee. He supervises approxi-
mately 15 employees (8 directly and 7 through another supervisor)
who prepare method sheets for production operations and design tools
and fixtures. These employees are draftsmen with a working knowl-
edge of tools and fixtures and are not covered by the contract between
the Company and the Union representing rank and file employees.
We shall exclude this employee,14 as a supervisor of technical em-
ployees, together with his assistant, the foreman, methods and tool
design.15
Traffic Manager: The Union does not request that this person be
included in the unit for the reason that he regards himself as a pro-
fessional employee. It will, however, admit him to membership if
the Board decides to include him in the appropriate unit. The Com-
pany contended that he should not be included because most of his
work is clerical and he does not have any subordinates. This employee,
13 Compare with Matter of Federal -Mogul Corporation, 66 N. L R . B. 532.
12 See Matter of Kelsey -Hayes Wheel Company, 66 N. L. R. B. 570.
13 This employee was also referred to at the hearing as the general foreman of methods
and tool desgn.
1 4 See Kelsey -Hayes Wheel Company, supra.
15 The company pay roll carries this employee as a methods engineer.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his activities as traffic manager, directly supervises 2 clerks and is
engaged in securing rate adjustments, checking classifications, keeping
salesmen informed of rate changes, and making arrangements for
transportation. He also devises crates and supervises the foreman of
the shipping room, who is in charge of approximately 16 employees
who crate products and load them on the cars. We find that the traffic
manager is a supervisor of production employees and shall include
him in the voting group of general foremen 16'
In its brief the Union requests certification on the basis of the record.
It is the Board's opinion that an election is the most satisfactory means
of resolving representation questions, and, accordingly, we deny the
Union's request.
We shall direct that separate elections be held among the employees
in the voting groups described below who were employed during the
pay-roll period immediately preceding the date of the Direction of
Elections herein, subject to the limitations and additions set forth in
the Direction :
1. All general foremen including chief inspector and traffic man-
ager, but excluding manager of methods and tool design and general
foreman, experimental shop.
2. All foremen including assistant chief inspector, but excluding
foreman, methods and tool design, and foreman, small tools 17
As stated above, there will be no final determination of. the appro-
priate unit pending the results of the elections.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions 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 Williams Oil-O-
Matic Division of Eureka Williams Corporation, Bloomington, Illi-
nois, separate elections by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director for
the Thirteenth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Sections 10 and 11,
of said Rules and Regulations, among the employees in the voting
groups described in Section IV, above, who were employed during the
pay-roll period immediately preceding the date of this Direction,
19 See The Midland Steel Products Company, Parish & Bingham Division, 65 N L R B.
997.
17 The parties agreed to exclude this employee who makes out requisitions for small tools
and keeps a record of the tools in the central stores . He supervises one person doing
clerical work.
WILLIAMS O1L-O-MATIC DIVISION 1099
including -employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and includ-
ing employees in the armed forces of the United States who present
themselves 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 elections, to determine in each of
the voting groups whether or not they desire to be represented by Inter-
national Association of Machinists, Lodge 1004, for the purposes of
collective bargaining.
MR. GERARD D. REILLY, concurring separately :
My position in this case is the same as that expressed in my concur-
ring opinion in the Matter of The Midland Steel Products Company.18
As in that case, I would direct no election in this matter since all the
persons who are the subject of this petition are supervisors and the
issues involved do not differ in any relevant respect from those con-
sidered in the Matter of Jones d Laughlin Steel Corporation, Pesta-
Shannopin Coat- Division.19 Since the majority of the Board enter-
tains a contrary view, however, I wish to concur in the conclusion
that the general foremen should be balloted separately so as to ascer-
tain whether or not they desire to be in the same bargaining unit
which includes the foremen There is sufficient evidence in the record
to indicate that the duties and responsibilities of this group are dis-
tinguishable from the lower level of supervision.
MR. JOHN M. HOUSTON, concurring specially :
For the reasons stated in the Midland Steel care, cited above, which I
feel equally applicable here, I would provide for only one voting group
of all general foremen and foremen.
1i' 65 N. L. R. B. 997.
"'My views on the basic issues are contained in my opinion in the Matter of Jones