Fibreboard Products, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1946

66 N.L.R.B. 626 (N.L.R.B. 1946)

In the Metter of FIBREBOARD PRODUCTS, INC. and FOREMAN'S AssocIA-
TION OF AMEI#ICA
`Case No. 21-.R-2880.--Decided March 13,1946
•, Brobeck; Phleger & Harrison, by Mr. Marion B. Plant, of San
Francisco, Calif., for the `Company.
i Wirin d 'Tietz, by Mr.' J. B. Tietz, of Los Angeles, Calif., for the
Union.
ilr.-Oscar Geltman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Foreman's Association of America,-
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of Fibreboard
Products, Inc., Los Angeles, California, herein called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before George H. O'Brien, Trial Examiner.
The hearing was held at Los Angeles, California, on July 23 and 24,
1945. The Company and the Union appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were af-
forded opportunity to file briefs with the Board. At the hearing, the
Company moved to dismiss the petition for lack of jurisdiction. The
Trial Examiner referred this motion to the Board. For reasons stated
hereinafter, the motion is hereby denied.
Upon the entire record in the case, the Board makes the following:
1In the petition and other formal papers filed herein, the name of the Union appears
as "Foremen's Association of America." However, in a copy of the Union 's constitution,
in evidence , the name appears as "Foreman 's Association of America ." Accordingly, we
shall correct the name of the Union in the petition and other formal papers to read as
above.
66 N. L . R. B., No. 87.
626
FIBREJ3OARD PRODUCTS, INC,
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
627
Fibreboard Products, Inc., a Delaware corporation, operates in
various western States such facilities as a pulp mill, paper board and
box board mills, and converting plants. This proceeding concerns
employees at the Company's converting plants in Vernon and in South
Gate, Los Angeles, California. At the Vernon plant the Company
manufactures cardboard cartons, paper, and wallboard, and at the
South Gate plant it manufactures corrugated containers and sheet-
board. During the year 1944, the Vernon plant, used approximately
58,000 tons of raw materials, of which approximately 7,500 tons were
shipped to it from points outside the State of California, and pro-
duced approximately 53,000 tons of finished products, of which ap-
proximately 5 percent was shipped to points outside the State. During
the same period, the South Gate plant used approximately 20,000 tons
of raw materials, of which approximately 4,000 tons were shipped
from points outside the State of California, and produced approxi-
mately 20,000 tons of finished products, of which approximately 5
percent was shipped to points outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Foreman's Association of America, unaffiliated, is a labor organiza-
tion, admitting to membership supervisory employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On May 3, 1945, the Union wrote to the Company requesting
recognition as the collective bargaining representative of the Corn-
pany's foremen at the Vernon and South Gate plants. The Company
has refused to grant such recognition.
The Company argues in support of its motion to dismiss the petition
that the foremen are not employees within the meaning of the Act
and that consequently the Board lacks jurisdiction of the subject
matter of this proceeding. The status of foremen and comparable
supervisors under the Act has been discussed in numerous Board 2
2 Matter of Soss Manufacturing Company, et al ., 56 N L R B 348; Matter of Packard
Motor Car Company, 61 N. L R. B 4, and 64 N L R B. 1212, Matter of L A. Young
Spring & Were Corporation , 65 N. L. R. B 298 ; Matter of The B F . Goodrich Company,
65 N. L R. B. 294; Matter of Simmons Company, 65 N L. R. B. 984 ; Matter of The
Midland Steel Products Company, Parish & Bingham Division , 65 N. L R. B 997.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and court decisions .3 Both the Board and the courts have concurred
in the holding that foremen have a dual aspect under the definitions
of "employer" and "employee" contained in the Act. When he acts
in the interest of his employer, a foreman is an "employer"; but when
he acts in his own interest, as when he seeks to better the terms and
conditions of his employment, he is an "employee." There is no
inconsistency in recognizing such duality of status. Accordingly, we
find that for the purposes of this proceeding the foremen here involved
are employees within the meaning of Section 2 (3) of the Act.
A report by the Trial Examiner, introduced into evidence at the
hearing, indicates that the Union represents all the employees in the
unit hereinafter found appropriate.4
We find that a question affecting commerce has arisen concerning
the representation of employees, of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit consisting of the "salaried foremen" at the
Company's Vernon and South Gate plants. The Company has made
no contention with respect to the scope or composition of the unit
sought. It asserts, however, that because the foremen here involved
are part of management , a unit of such employees is inappropriate.
The Company attempts to distinguish this case from the Packard 5
case on the ground that the foremen here involved have duties, powers,
and responsibilities greater than those of the supervisors in that case.
The Company has also set forth various evils which it alleges will
flow from the unionization of its foremen.
The issues raised in this proceeding were considered in extenso in
the Young case ." A majority of the Board there concluded, as we do
here, that foremen are employees within the meaning of Section 2 (3)
of the Act; that, as employees, they are entitled to be placed in some
appropriate unit under Section 9 (b) ; that the type of industry in
which the foremen are employed is immaterial; and that the nature
of the duties and responsibilities of the foremen is relevant only inso-
far as it bears on the question of proper grouping of the foremen for
collective bargaining purposes.
The Company's supervisory hierarchies in immediate and full-time
$N. L. R. B. v. Armour and Co., 154 F. (2d) 570 (C. C. A. 10) ; Jones & Laughlin Steel
Corporation v. N. L. R. B, 146 F. (2d) 833 (C C. A. 5) ; N. L. R. B v Skinner &
Kennedy Stationery Company, 113 F. (2d) 667 (C. C A. 8)
' The Trial Examiner reported that the Union submitted 20 designation cards, bearing
the names of all the employees in the alleged appropriate unit.
5 Matter of Packard Motor Car Company , supra.
"Matter of L A. Young Spring & Wire Corporation, supra.
FIBREBOARD PRODUCTS, INC. 629
charge of the plant here involved are set forth below, with employees
listed 7 in descending order of inportance :
Vernon plant South Gate plant
2 third line supervisors 1 third line supervisor
7 second line supervisors 5 first line supervisors
14 first line supervisors 3 subfirst line supervisors
7 subfirst line supervisors
The salaried foremen sought by the Union were identified by it as
the employees listed on the Vernon and South Gate plant pay rolls
as first line supervisors,8 plus one employee listed as a subfirst line
supervisor. The latter employee is further designated on the pay roll
as the raw materials assistant foreman, Vernon plant. The record
indicates that the first line supervisors are in immediate charge of the
Company's production departments, and are all on the same super-
visory level.9 They are nonworking foremen and have a considerable
degree of authority over their subordinates. However, the one sub-
first line supervisor sought to be included in the unit is apparently a
working foreman, with a lesser degree of authority; and it is clear
that he, along with the other subfirst line supervisors, is on a lower
supervisory level than the first line supervisors. Inasmuch as the
other subfirst line supervisors are agreed exclusions, we shall also
exclude the raw materials assistant foreman, Vernon plant.
The Company has made no contention that the Union is not inde-
pendent of any other labor organization representing the Company's
rank and file employees. As in the previous cases involving the peti-
tioner, we find that the Union is an independent, unaffiliated labor
organization organized for the exclusive purpose of representing
supervisory employees.'°
We therefore find that all first line supervisors employed by the
Company at its Vernon and South Gate plants, excluding the raw
materials assistant foreman, Vernon plant, and all other subfirst line
supervisors, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
The titles listed are pay-roll designations.
H These first line supervisors are further designated on the pay rolls as follows : at the
Vernon plant : assistant master mechanic, board mill night superintendents, raw ma-
terials foreman, finishing room foreman, composition foreman, pressroom foreman, cutting
foreman, finishing room foreman, fibre department foreman, night foremen in carton
department, mechanical foreman ; at the South Gate plant : maintenance foreman, receiv-
ing department foreman, pressroom foreman, slitter room' foreman and assistant plant
superintendent, shipping foreman.
'a Although one of these employees, the slitter room foreman and assistant plant super-
intendent, occasionally substitutes for and exercises the duties of the plant superintend-
ent, a third line supervisor, it appears that he assumes these duties infrequently and
irregularly.
lO Matter of Packard Motor Car Company, supra; Matter of L A. Young Spring & Wire
Corporation, supra; Matter of The B. F. aoodrseh Company, supra.
630 DECISIONS OIL' NATIONATi LABOR RELATIONS BOARD
'V.'rTTE DETERMINATION OF IiMtgSENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved, by an' election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
DIRECTION OF, ELECTION
By virtue, of and pursuant to the power vested in the National Labor
Relations Boardby,Section, 9 (c) of the National Labor Relations Act,
and pursu tnt to Article III, Section 9, of National Labor Relations
Board Wes and Regulations-Series 3, as amended, it is hereby
DIR]cTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Fibreboard
Products, Inc., Los Angeles,,, California, an -election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction,, under the direction and super-
vision of the Regional Director for the Twenty-first 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 Regu-
latjons, among employees in the, unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
tits ork during said pay-roll period because they were ill or on vacation
or temporarily ,laid off, nd including employees in the armed forces
of the United States who present themselves in person at the polls,
but exellZ,ding those employees who have since quit or been discharged
for .cause and have not been rehired or reinstated prior to the date
of the election, to, determine, whether or not they desire to be repre-
sented by ForeWan's Association of America, for the purposes of
collective bargaining. ,
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.