Packard Motor Car Co.

National Labor Relations Board - Board Decisions

Mar 26, 1945

61 N.L.R.B. 4 (N.L.R.B. 1945)

In the Matter of PACKARD MOTOR CAR COMPANY and FOREMAN'S Asso-
CIATION OF AMERIOA
Case No. 7-R-1884.-Decided March 26, 1945
Mr. David Karasick, for the Board.
Bodman, Longley, Bogle, Middleton, and Armstrong, by M. Louis
F. Dahling, of Detroit, Mich., and Beaumont, Smith, and Harris, by
Mr. Percy Donovan, of Detroit, Mich., for the Company.
Mr. Walter M. Nelson, of Detroit, Mich., for the Association.
Mr. Seymour J. Spelmaw, 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 Association, alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Packard Motor Car Company, Detroit, Michigan, herein called the
Company, the National Labor Relations Board provided for an ap-
priate hearing upon due notice before Samuel H. Jaffee, Trial Ex-
aminer, Said hearing' was held at Detroit, Michigan, on December
18 through 22 and December 26 through 29, 1944, and on January
3 and 4, 1945. The Company and the Association appeared and
participated, and were afforded full opportunity to be heard, to ex-
amineand cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The Trial Examiner referred to the Board for
ruling a motion of the Company to dismiss the petition. For reasons
stated hereinafter, the motion is hereby denied. The Trial Ex-
aminer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. In view of the importance of the question
raised in the case, the Board permitted the parties and numerous
other employer and union groups to appear and participate in an
oral argument before the Board in Washington, D. C., on February
27,'1945, and to file briefs which have been given careful consider-
ation.
61 N. L. R. B., No. 3.
4
PACKARD MOTOR CAR COMPANY rj
Upon the entire' record in the case, the Board makes the follow-
ing :
FINDINGS OF FAUr
1. THE BUSINESS OF THE COMPANY
Packard Motor Car Company is a Michigan corporation with its
principal office and place of business in Detroit, Michigan. Prior to
1941, the Company was engaged at its Detroit plants in the manufac-
ture and sale of automobiles. Since 1941 the Company's manufac-
turing facilities have been converted to the manufacture of
munitions for Army and Navy Ordnance and the Company is at the
present time engaged almost entirely in war production. The Com-
pany annually purchases raw materials valued in excess of $5,000,000
of which 50 percent is obtained from sources outside the State of
Michigan and is shipped to the Company's plants located in the State
of Michigan. The Company's annual sales of finished products ex-
ceed $5,000,000, of which 90 percent represents sales of such products
shipped from the Detroit, Michigan, plants of the Company to points
outside the State of Michigan.
Upon the basis of these facts, we find that the Company is engaged
in commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Foreman's Association of America is an unaffiliated labor organiza-
tion admitting to membership supervisory employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In a letter dated November 25, 1944, the Association advised the
Company that its Chapter 5 represented a majority of the Company's
foremen and requested a conference for the purpose of initiating nego-
tiations for a signed agreement. The Company stipulated at the
hearing that it received the letter in due course of mail and that it has
made no reply. The Company stated further that it never intended to
recognize and bargain with the Association.
The Company moved to dismiss the petition on the, ground that the
foremen sought to be represented by the Association are not "em-
ployees" within the meaning of the National Labor Relations Act. In
support of its motion, the Company contends that (1) foremen are
"employers" within the meaning of the Act, since that term is defined
in Section 2 (2) as including "any person acting in the interest of an
employer directly or indirectly"; (2) the language of the Act, as well
as its legislative history, indicates that Congress intended that the term
"employee" refers to "workers," as distinguished from supervisors;
(3) if Congress had intended to include supervisors within the defini-
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the term "employee," it would have used appropriate specific
language- as "it did in the Railway Labor Act; and (4) in passing the
National Labor Relations Act, Congress did not intend to remedy the
kind of situation that is presented in the instant case. It is unneces-
sary in this decision to discuss at length the first three arguments which
the Company has raised in support of its motion, for we have consid-
'ered and rejected the same arguments in earlier cases involving super-
visory employees.' In our recent decision in the Soss case,2 we reexam-
ined the entire question, and unanimously reaffirmed our.consistent and
now well settled position that supervisors are "employees" within the
meaning of Section 2 (3) of the Act .3 That decision contains a full
statement of our reasons for rejecting the arguments which the Com-
pany has raised herein. However, in its brief, the Company makes
one novel contention in support of its position. It argues that, inas-
much as foremen, at the time the Act was passed, were not engaging in
strikes and other forms of industrial strife in order to win collective
bargaining rights, Congress did not intend the Act to cover this class
of employees. We are not referred to any authority for the statement
that foremen were not organizing or engaging in strikes at the time the
Act was passed. The fact is that the organization of foremen ante-
dates considerably the National Labor Relations Act 4 But even if it
be assumed that the Company is correct in that statement, it is plain
that it assigns too narrow a purpose to Congress in enacting this legis-
lation. If we were to accept the Company's construction, then in every
case we would be required to determine whether the employees involved
were organizing and engaging in strikes at the time the statute was
enacted. That static touchstone of jurisdiction would leave unpro-
tected vast sections of employees in many vital industries, and the Act
would fall far short of accomplishing its declared purpose. In stating
the purpose of the statute in Section 1 and in defining the term "em-
ployee" in Section 2, Congress used broad. language and there is noth-
ing in that language or in the legislative history of the Act which in
our opinion would justify our construing it in the narrow and restric-
I see, for example, Matter of Union Collieries Coal Company , 41 N L. R. B 961; Matter of
Godchaux Sugars, Inc., 44 N. L. R. B. 874; Matter of Harmony Short Line, 42 N. L. R. B.
757.
2 Matter of Soss Manufacturing Company, 56 N L R. B. 348.
3In this position the Board has invariably received judicial support. See , for example,
N. L. R. B. v. Skinner and Kennedy Stationery Co., 113 F. (2d) 667 (C. C A. 8) ; N. L. it. B.
v. Fruehauf Trailer Company, 301,U. S. 49, rev'g 85 F. (2d) 391 (C. C. A. 6) ; N. L. it. B v.
American Potash and Chemical Corp , 98 F (2d) 448 (C C. A 9), enf'g 3 N. L. R. B. 140;
Eagle-Picher Mining and Smelting Company v. N . L. R. B, 119 F. ( 2d) 903 (C. C. A. 8)';
N. L. R B. v. Star Publishing Company, 97 F. (2d) 465 •(C. C A. 9) enf'g 4 N. L. R. B. 498.
4 At the time the Act was passed the practice of organizing foremen was thoroughly
established in such industries as railroad and maritime and in such trades as printing,
building, and metal ; and there were three organizations of supervisory personnel in the
Postal and Railway Mail service. There is absolutely no warrant for the assumption of
the dissenting opinion that the Congress intended this legislation to benefit only such
employees as comprised that segment of our population characterized as "one-third of
the Nation." I ,
PACKARD MOTOR CAR COMPANY 7-
tive manner which the Company is urging. On the contrary, in the
Hearst case the Supreme Court supported this Board in rejecting a
restrictive construction of the scope of the Act.5 The Court declared
that, in,passing the Act, Congress
sought to find a broad solution, one that would bring industrial
peace by substituting, so far as its power could reach, the rights
of-workers to self-organization and collective bargaining for the
industrial strife which prevails when these rights are not effec-
tively established. [Emphasis supplied.]
The Court further declared that Congress employed broad language
advisedly, with the intention of leaving to the expert discretion of this
Board the task of determining who are "employees" within the mean-
ing of the Act; that this question is to be determined by the "underly-
ing economic facts," and that "where all the conditions of the relation
require protection, protection ought to be given." Thus, the narrow
test of jurisdiction for which the Company is contending is manifestly
inconsistent with the broad purposes of the Act and for that reason we
must reject it. Accordingly, we find that the persons sought to be
represented by the Association are "employees" within the meaning
of Section 2 (3) of the Act and we hereby deny the Company's motion
for dismissal of the petition.
A statement of a Field Examiner, introduced into evidence at the
hearing, indicates that the Association represents a substantial num-
ber of employees in the unit hereinafter found appropriate s
• 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 Association requests the establishment of a unit consisting of
all general foremen, foremen, assistant foremen and so-called special
assignment men employed by the Company at its plants in Detroit,
Michigan.7 The Association is an organization established for the
s N L. R. B. v. Hearst Publications, Inc, 322 U. S . 111. In this case the court supported
the judgment of the Board that the term "employee" covered newsboys.
9 The Field ` Examiner reported that the Association submitted 868 dues receipts. Of
these, 1 showed dues paid through July 1944; 72 showed dues paid through August 1944;
278 showed dues paid through September 1944; 75 showed dues paid through October 1944;
45 showed dues paid through November 1944; 394 showed dues paid through December
1944, and 3 showed dues paid through January 1945. Of the 868 dues receipts submitted,
39 bore the names of persons appearing on the Company 's pay roll dated December 2,
1944'; 84 showed dues paid by general foremen, 444 by foremen , 184 by assistant foremen,
and 27 by special assignment employees . The same pay roll lists 125 general foremen,
643 foremen , 273 assistant foremen, and 65 special assignment employees.
The petition covers the main plant and two other buildings in Detroit, recently acquired
by the Company and - referred to in the record as the Hupp and Bundy plants. The petition
does not include the Company's Toledo plant , or its sales and service subsidiaries wherever
located.
$ DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
exclusive purpose of representing supervisory employees,8 and all of
the employees in the proposed unit admittedly exercise supervisory
functions over subordinate employees. The question thus presented
at the outset is whether or not, under the circumstances of this case, a
unit consisting of supervisors is appropriate for the purposes of col-
lective bargaining. Relying upon the authority of the Maryland
Drydock case 9 and related decisions of this Board, and upon certain
arguments discussed below, the Company contends that such a unit is
inappropriate.
While the facts in the Maryland Drydock case were different from
these, it is true that in several cases which followed that decision, the
majority of the Board dismissed petitions for the establishment of
bargaining units comprising supervisory employees in circumstances
substantially similar to those presented by this record 10 Those peti-
tions were not dismissed, however, on the ground that foremen are
outside the ambit of the National Labor Relations Act. On the con-
trary, as we have pointed out in the preceding section, we have con-
sistently said that supervisors are "employees" within the meaning of
the statute, and after Maryland Drydock was decided, we held in a
unanimous decision that the National Labor Relations Act protects
supervisors, as well as rank and file employees, in their right to self-
organization and to engage in concerted activities for their mutual aid
and protection11 In the Maryland Drydock case, which was decided
nearly 2 years ago, the majority merely held that, on the basis of the
record then before us and in the "state of industrial administration
and employee self-organization" then existing, the policies of the Act
would not be effectuated by the establishment of bargaining units
composed of supervisory employees. Nevertheless, we made plain at
that time our unanimous view that nothing in the Act prohibits the
Board as a matter of law from establishing supervisory units; rather,
the majority expressly stated in that decision that the "determination
of this type of question is a function reserved to the administrative
discretion of the Board." Otherwise, we would have been unable to
recognize, as we did in that decision, the wisdom of making exceptions
to the principles enunciated in that case . Two of these exceptions
have since found their way into decisions of this Board in which
bargaining units were established for supervisory employees in both
8 Article VI, Section 2 , of the Association 's Constitution provides that : Any employee of
good moral character , whose duties require the supervision of other employees, or who
directs work, who may or may not supervise other employees , and who is not a member
of any other organization recognized , by his employer as representing him in collective
bargaining, may become a member of the Association. .
9 Matter of Maryland Drydock Company , 49 N. L R. B 733.
10 Matter of Boeing Aircraft Company, 51 N. L. R. B. 67, Matter of Murray Corporation
of America, 51 N. L. R. B 94 ; Matter of General Motors Corporation, 51 N. L. R. B. 457
11 Matter of So8s Manufacturing Company, 56 N. L. R. B. 348.
PACKARD MOTOR CAR COMPANY 9
the printing and maritime trades .2 The power of the Board to estab-
lish such units was challenged before the Circuit Court of Appeals
for the Fifth Circuit in a case involving supervisory employees in the
maritime trade. The court agreed that the determination of this
question was a function reserved to the administrative discretion of
the Board and supported our finding that a unit consisting of masters,
mates- and pilots-all supervisory employees-was appropriate for
the purposes of collective bargaining.13
In the present case, we are again confronted with a petition seeking
the establishment of a unit of supervisory employees in a mass produc-
tion industry. Again we are being called upon to determine whether,
in our judgment, such a unit would, on the basis of the facts presented
in this case, be appropriate for the purposes of collective bargaining.
Since the decision in the Maryland Drydock case, we have observed
with concern the important developments in the field of foremen
organization which are fully set out in the record before us, and which,
we believe, require a reconsideration of the entire problem.
At`the outset it is necessary to describe the nature of the employee-
group involved here, for no proper understanding of the problems of
these foremen can be had unless their role in modern mass production
industry is understood. As to this, there is widespread misconcep-
tion. We do not have today in mass production industry, such as
Packard, the kind of supervisors with which we were familiar in the
early 1900's. In those days the foremen were often independent con-
tractors, operating under the loosest kind of production schedule and
having plenary authority with respect to such matters as hire, rates of
pay, promotion, demotion, transfer, discipline and discharge of em-
ployees under their supervision. This was true even in those plants
where the foremen were not independent contractors. In their deal-
ing with individual subordinate employees, foremen had the power to
make decisions and take action without the necessity of securing the
approval of their superiors. In sum, within his own sphere, the fore-
man was master of his department. Today the picture is fundamen-
tally different. Vast aggregates of capital, the presence of thousands
of employees under one roof, the introduction of special purpose ma-
chinery and tools, extreme specialization and integration of depart-
ments, and the development of "scientific management" in general-
all have combined to reduce the skilled to the semi-skilled and the
semi-skilled to the unskilled; and all this in turn has made the super-
12 See, for example , Matter of W. F. Hall Printing Company, 51 N. L R. B 640 ; Matter
of Jones & Laughlin Steel Corp ., 54 N L R B 67 !) , Matter of Ohio Barge Ltne, Inc., 59
N. L. R B 154; Matter of A. S Abell Co, 54 N. L . R. B. 62, Matter of Cincinnati Daily
Newspaper Publishers Association., 55 N L R B 571 , Matter of Service Printers , Inc, 54
N. L. R. B. 1082.
13 Jones & Laughlin Steel Corp. v. N. L. R . B, 146 F. ( 2d) 833 ( C. C. A. 5).
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visor more the "traffic cop" of industry than the independent foreman
of the 1900's. As the Production Engineer of the Company conceded
at the hearing, the very nature of modern mass production industry
requires that the supervisors be constantly subjected to rigid controls
and checks from above, for it is essential that there be extremely close
coordination of production among hundreds of departments (approxi-
mately 300 in this case) in order to meet increasingly exacting stand-
ards. This means that the supervisor not only must follow policy
which higher management has established, but that in the very carry-
ing out of that policy, he is required to adhere to fixed patterns and
procedures also set by higher management. Thus, he is given ready-
made policies to execute and he is also given standard practice to
observe in executing them. Nor have these been the only changes in
the foreman's status. The expansion of mass production industry
has created a variety of service departments, all of which have worked
fundamental changes in the authority and duties of foremen. , Thus,
at Packard-a typical mass production plant-the employment de-
partment does the hiring; the lay-out department lays out the,ma-
chinery, tools, and equipment; the scheduling department schedules
the work; the routing department routes the work; the.stock or traffic
department moves it; the time'-study department sets the rates; the
inspection department checks the quality; if anything goes wrong, the
master mechanic comes in and corrects it; the personnel department
handles the grievances of subordinate employees beyond the first stage
and retains ultimate control in any event, and other departments
handle numerous other employee services.
In addition to this, the presence of strong unions of the rank and
file has also operated to affect substantially the authority and prestige
of supervisors. Transfers are made only after consultation with the
stewards of these unions. Rates are set as a result' of time studies
reached after conferences between the employer's time-study depart-
ment and union representatives. Grievances are handled in accord-
ance with procedures established in the contract between the employer
and the rank and file union, with the stewards representing the ag-
grieved employee. And many of the stewards take it upon themselves
(improperly) to by-pass the supervisors and go direct to a higher
authority in connection with the handling of grievances. The facts
pertaining to the foremen at Packard specifically are illustrative of
this development.
With respect to the discipline and grievances of the rank and file
workers under his supervision, the scope of the foreman's authority at
Packard is established and circumscribed both by written rules and
regulations laid down by the Company and by the contract between the
PACKARD MOTOR CAR COMPANY 11
Company and the union of the rank and file employees 14 in the negoti-
ation of which the foremen, of course, play no part. Thus, for infrac-
tions of Company rules relating to stealing, drunkenness, gambling,
fighting, sleeping during working hours, smoking in restricted areas,
and the like, there are set penalties, such as a 3-day lay-off for a first
offense, a 6-day lay-off for the second, and so on. If an employee is
found gambling, the foreman prepares a written report (called a
"query") stating the infraction and indicating the recommended pen-
alty. This report is presented to the union steward for his signa-
ture of approval. If the steward assents, the penalty is imposed and
the report is sent through channels to the Labor Relations Department.
If the steward refuses to approve, the offending employee is given a
hearing in which a union representative and a representative of the
Labor Relations Department participate. Sometimes, the judgment
of the reporting foreman is upheld, sometimes not. In some instances,
as where the foreman has actually observed the violation, he is called as
a witness at this hearing. On matters which are not provided for in
the Company's rules and regulations, such as grievances, the grievance
procedure established in the rank and file union contract is followed.
Under that contract, the union appoints a chief steward in each depart-
ment or group of departments, a district steward for each of the six
or more districts in the plants, and a Plant Committee consisting of not
more than three employees. The contract provides that all grievances,
except those concerning company policy, will be referred by the chief
steward directly to the department foreman. If the grievance is not
settled by the chief steward and the foreman, it is referred by the chief
steward to the district steward of the union who meets with the Com-
pany representative in the Industrial Relations Department. If the
grievance cannot be settled by these parties, the district steward then
refers it in writing to the Plant Committee which meets and discusses
the grievance with a high management representative. The vast major-
ity of the day-to-day grievances are trivial and are worked out between
the chief steward and the foreman. But questions involving company
policy are never determined at the first level of the grievance procedure.
The contract provides that "Grievances concerning Company policy
shall be referred by the chief steward directly to the district stew-
ard who will take them up with the person in the Industrial Relations
Department designated for him to contact." The foreman has no au-
thority to make decisions or take action, on such matters, as the dis-
charge, transfer, lay-off, or reclassification of the employees under his
supervision. On these questions, his power is limited to the'making
of recommendations. The contract with the rank and file union pro-
"United Automobile, Aircraft & Agricultural Implement Workers of America , affiliated
with the Congress of Industrial Organizations.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vides that "The ' chief steward will be notified in writing before an
employee is discharged, reclassified or transferred from his depart-
ment. The chief steward will have twenty-four (24) hours in which
to file a protest and the employee will receive a hearing within the
same length of time, if requested." The participants in such a hear-
ing are a representative of the union and a representative from the
Company's Labor Relations Department.
This is not to say that the foreman's job is becoming less exacting
or that it can be filled by less competent people. On the contrary,
"... the need for able men in the posts of foremen seems to be grow-
ing. The foreman may be given more and more ready-made policies
to execute, more and more standard practices to observe in executing
them, and more and more help from a variety of service departments,
but he is also held to higher and higher standards in meeting pro-
duction schedules, in maintaining standards of quality, and in dealing
with personnel. Furthermore, higher management cannot escape
dependence upon the foreman's knowledge of men and conditions
and upon the wisdom and fairness of the foreman's judgment." 15
But the over-all, long-term trend in mass production industry has
materially reduced the independence and authority of the foreman
and his responsibility for making policies. As the Foremen's Panel
of the National War Labor Board has aptly described the situation,
"Whereas he was formerly an executive with considerable freedom of
action, he is now an executor carrying out orders, plans and policies
determined above;" he is "more managed than managing, more and
more an executor of other men's decisions and less and less a maker of
decisions himself." 16
With this picture of the foreman in modern mass industry in mind,
his asserted need for collective bargaining becomes more meaningful
and the incredibly rapid growth of his organizations wholly under-
standable. -
The facts which are presented to us reveal an unswerving deter-
mination on the part of foremen to combine together in their own
organizations for the purpose of obtaining the legitimate fruits of
collective action. Spurred by the realization that developments in
mass production techniques have materially reduced their authority
and independence and by feelings of insecurity and resentment aris-
ing out of the inevitable comparison with employees who are inferior,
in rank but superior in bargaining strength by virtue of the labor
organizations behind them and the protection of the Act, this group
15 Report and Findings of the Special Panel of the National War Labor Board appointed
in certain disputes involving foremen. Among the numerous employers involved in these
disputes was the Company in the instant proceeding . The Panel , hereinafter called the
Foremen's Panel , issued its Report and Findings on January 31, 1945.
16 Report and Findings of the Foremen 's Panel, ibid ., at pages 39 and 41.
PACKARD MOTOR CAR COMPANY 13
of employees has started a movement toward self-organization which
continues to gain in strength and momentum, with remarkable
spontaneity, despite an almost universal unwillingness on the part of
employers to accept such organizations and deal with them. In the
fall of 1941, a group of foremen at the River Rouge plants of the Ford
Motor Company began to discuss the possibility of forming a fore-
man's organization and in January 1942, the first chapter of the Fore-
man's Association of America was established at the Ford plants.
By the end of 1942, there were 7 chapters containing a total of 10,392
members. At the end of 1943, there were 67 chapters; and by the end
of 1944, there were 148 chapters, with a total of 32,142 members. At
first the organization was largely confined to the automotive industry
in the Detroit area, but it has now expanded to embrace a host of
major industries in 17 States and Canada 17 It is significant that dur-
ing this period the Association found it unnecessary to employ paid
organizers. However, notwithstanding this growing strength and
the fact that we have made it clear that nothing in our decisions
should be taken to prohibit employers from voluntarily dealing with
foremen's organizations, it cannot be denied that most employers
have nevertheless refused to accord them recognition and have been
strengthened in this position by the belief that this Board would not
require them to do so.'8
The result has been that supervisory employees have resorted to the
only remaining weapon at their disposal to secure recognition-a test
of economic strength through strikes and threats of strikes. Thus,
after the decision in the Maryland Drydock case and from July 1,
1943 through November 1944, there were 20 strikes of supervisory
employees; 131,000 employees were involved and 669,156 man-days
of work were lost as a result. Over 96 percent of the man-days lost
occurred in strikes for recognition.19 The basic industries of the na-
tion were affected : shipbuilding, steel, aluminum, brass, automobile,
coal mining, airplane products, railroad cars, and public utilities.
The effect of these strikes for recognition on the production of vital
war material has been serious. General Arnold, Commanding Gen-
eral of the Army Air Forces, testifying before the National War Labor
Board in May 1944 declared : "These strikes in Detroit cover Packard,
where we are producing the Merlin Engines; they are affecting Briggs,
"The industries in which the Association is now organized or organizing include the
following: automotive, plumbing, heating and refrigeration instruments, rubber, radio, pub-
lic utilities, steel fabrication, shipbuilding, machine parts, aluminum, petroleum products,
stoves, bedding, chemical products, electrical appliances, grinding parts, smelting, paper
products, railway cars, aviation, elevators, medical supplies, and meat products.
Is Thus far the Association has been able to secure only two contracts, one with the Ford
Motor Company and the other with the United Stove Company, of Ypsilanti, Michigan.
79 Statistics prepared by the Bureau of Labor Statistics, Department of Labor, and certi-
fied by the Secretary of Labor ; Introduced in evidence at the hearing in the present
proceeding.
639678-45-vol. 61-3
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where A-20, B-29, B-17 and B-24 parts are being produced; they are
affecting Murray, where we are producing P-47 wings and B-17
parts; they are affecting Hudson, where we are producing B-29 parts
and P-38 parts; they are affecting Gar Wood, where we are producing
cranes for heavy trucks, parts for our amphibious ducks, winches and
parts for wrecking trucks ,used in the battlefield and other places .. .
In my opinion this is one of the most serious set backs that the Army
Air Force program has had since its inception. And to show you
that I am not exaggerating, this strike so far has cost the United
States Army Air Force 250 P-51 airplanes, tivhich is not a small num-
ber." 20 The strike which closed the Packard plant in 1944 was also,
as admitted by the Company, a strike for recognition.
We cannot shut out eyes to these developments since the decision
in the Maryland Drydock case. The Act which it is our responsibility
to administer was enacted by the Congress for the purpose of remedy-
ing this very kind of evil. The Congress found in Section 1 of the Act
that the refusal by employers to recognize and deal with their em-
ployees in collective bargaining leads to strikes and other forms of
industrial strife, to the detriment of the public interest in the unin-
terrupted production and flow of material in interstate commerce.
It therefore enacted the statute to ensure that employers should recog-
nize the right of employees to organize and bargain collectively, and
that employees should be able to gain such recognition without resort
to economic warfare. The experience of the past 9 years under the
Act has vindicated the judgment of the Congress. During that period
10,058,872 employees have resorted to the orderly procedures of the
Act in 32,615 separate representation cases in order to establish their
right to recognition. These employees represent every major indus-
try in the Nation and are employed in the 48 States and in the Terri-
tories. The vast majority of these cases have been and are now being
settled through informal procedures.21 And while representation
cases have increased each year, unfair labor practice cases have de-
clined, indicating again that the Act has fulfilled its purpose of mak-
ing it unnecessary for employees to resort to strikes in order to gain
recognition, as well as the extent to which the purposes of the Act,
have been accepted in the industrial practices of employers.22
Now, the history of rank and file organization is being duplicated
in the organizational efforts of supervisory employees. Just as rank
2i Public hearing before the National War Labor Board in the case of the Foreman's
Association of America, May 17, 1944, at the Department of Labor building in Washington,
D C
21 In the first 9 years of the Board's operations, 70.2 percent of all representation cases
were closed in the informal stages 9th Annual Report, p. 11.
22 In 1936, 81 percent of our cases involved unfair labor practices, such as refusal to
recognize , 19 percent were representation cases. In 1944, only 28 percent of our cases'
arose out of unfair labor practices, while 72 percent were representation cases 9th Annual
Report, p. 16.
PACKARD MOTOR CAR COMPANY 15
and file employees before the passage of the Act were forced to resort
to tests of economic strength in order to gain recognition, so it is today
with supervisory employees. These are the plain and inescapable eco-
nomic facts, and we think it therefore manifest that the time has come
when, in the interest of effectuating the policies of the Act,, we must
accord greater recognition to the militantly expressed need of super-
visory employees for collective bargaining through their own organ-
izations.
The Company argues, however, that a unit of supervisory em-
ployees would not effectuate the policies of the Act and therefore
would be inappropriate; it urges us to continue to adhere to the princi-
ples enunciated in the majority decision in the Maryland Drydoek
case. The Company's contention appears to be predicated on two
theses : (1) the union here seeking to represent the foremen is not,
the Company asserts, independent of the union of rank and file em-
ployees at Packard; and (2) regardless of their representative's,
independence of the rank and file union, foremen cannot constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act. Since, in the Maryland Dryydoek
case, all members of the Board considered relevant the question of
the independence of the foremen's organization, we shall turn first
to a consideration of that issue.
The Company's position seems to be that the Association is not now
independent of rank and file unions; and if it is now independent,
it cannot long remain so. It may be assumed that the Company is
concerned solely with the relationship between the CIO and the As-
sociation, since it refers to no other labor organization. In support
of its argument that the Association is not now independent of the
CIO, the Company points out that (1) on June 29, 1943, the Michigan
CIO Council passed and published a resolution expressing its moral
support for the "fight of the Foremen to establish collective bargain-
ing rights and other rights guaranteed by the Wagner Act"; (2) on
May 24, 1944, an article appeared in "Victory News", an official pub-
lication of the UAW-CIO at the Dodge Chicago plant of the Chrysler
Corporation, in which a CIO local expressed its moral support for the
efforts of the Association in organizing and seeking to gain collective
bargaining rights at that plant; (3) in a strike involving the Associa-
tion at the plants of the Republic Steel Corporation, about 1,000 CIO
steelworkers refused to cross the picket line; and (4) in the foremen's
strike at Briggs in 1944, the rank and file created such a pandemonium
inside the plant that the operations had to cease.23 On the basis of
23 The Company also read into the record several paragraphs of material which it alleges
appeared in a leaflet prepared and distributed by the CIO at the plants of the Murray
Corporation of America during the organizational efforts of the Association However, the
material read into the record is not self-identifying and the Company failed to have it
identified or even to introduce it into evidence. We are thus unable to give it any proba-
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these incidents, the Company concludes that the Association is not
independent of the CIO. We cannot agree. In an absolute sense,
of course, the Association is not independent of the CIO,' or any labor
organization. Both are labor organizations and both are organized
for basically similar purposes-the improvement of the wages, hours
and working conditions of their membership through collective bar-
gaining. Both have common problems and therefore a common "bond
of sympathy." For these reasons, it is to be expected that they will
express moral sympathy for the organizational efforts of one another
and will, on occasion, even refuse to cross the picket line established
by the other during a strike. But support of this nature does not prove
the absence of independence. It shows only the existence of a general
common purpose-a condition which inheres in the very nature of
the labor movement and which therefore cannot be of controlling
significance'in our determination of whether or not a proposed unit
is appropriate for the purposes of collective bargaining. The es-
sence of independence of which this Board may take cognizance is
freedom of action, freedom from control. The Company does not al-
lege that the Association is not a free agent, or that its policies and
decisions are controlled by the CIO. Indeed, the Company impliedly
admits in its brief that the Association is not controlled by the CIO.
There is not a scintilla of evidence in the record to suggest that the
CIO or any other labor organization has any voice in the policies or
control over the actions of the Association. The Company contends
further, however, that even if the Association is now independent, it
cannot long remain so because it exists principally in an area where
the UAW-CIO is the dominant and most powerful labor group. The
Company points to the fact that several labor organizations which were
organized as independent groups in Detroit have since been absorbed
by the UAW-CIO. A similar fate is inevitable for the Association,
the Company contends. Of course, this is a matter of speculation.
The Company's prediction may or may not prove to be accurate. It
is sufficient to say that on the basis of the facts now before us it is
tive value . It might be noted , however , that the material in question contains statements
of sympathy and support by an unnamed and unidentified union for the Association , similar
to the statements discussed in the text of the decision , supra . The Trial Examiner rejected
certain exhibits offered in evidence by the Company to prove that rank and file employees
in a certain plant in Detroit participated in the foremen ' s strike of May 1944 The exhibits
were photostatic copies of findings of a Claims Examiner of the Michigan Unemployment
Compensation Commission in which he found that certain rank and file employees were
disqualified for unemployment compensation because they had participated in the foremen's
strike, within the meaning of Section 29 (c) of the Michigan Unemployment Compensation
Act we affirm the ruling of the Trial Examiner, for it is clear that the proffered exhibits
do not constitute competent evidence If the Company desired to prove that rank and file
employees in Detroit participated in the foremen's strike, the competent way to have done
so was by the introduction of direct evidence on that point before this Board.
The Trial Examiner freely admitted abundant evidence offered to show a connection
between the CIO and the Association , rejecting only the foregoing findings by a Michigan
Claims Examiner.
PACKARD MOTOR CAR COMPANY 17
clear that the Association is an unaffiliated and independent labor
organization, organized for the ' exclusive purpose of representing
supervisory employees.24 Thus, we are not confronted, as we were
in Maryland Drydock, with the petition of a foremen's organization
which is also the representative of the rank and file workers.
However, the Company appears to take the position that a unit of
its supervisory employees would be inappropriate even though the
foreman's union were independent and unaffiliated. We do not agree.
It is trtie that, following the Maryland Drydock decision, a majority
of the Board also dismissed the petitions of unaffiliated and independ-
ent foremen's union.25 But the majority did not do so because it felt
that the dangers which it envisaged in the Maryland Drydock situa-
tion were actually present in those cases. Indeed, as we pointed out
in our unanimous decision in the Soss case, those potential dangers
which concerned the majority of the Board in Maryland Drydock do
not materialize in cases where the petitioning foremen's union is inde-
pendent and remains so. Thus, for example, it could not be seriously
contended that the Company had illegally dominated or assisted the
union of its rank and file employees by recognizing the Association
as the representative of its supervisors, or that the organizational free-
dom of the rank and file employees had been impaired by virtue of
the activities of the foremen in behalf of their own independent or-
ganization. The Company itself has not claimed that any such
dilemma is present in the instant case. The sole reason which im-
pelled the majority of the Board to dismiss the petitions of unaf.
filiated foremen's unions was that it felt it would be necessary to police
our certification to guard against possible future affiliation. Such a
procedure, it believed, would prove impracticable. However, since
the decisions in those cases, we have been called upon in several in-
stances to make inquiries and take certain action as a result of a
change in circumstances following certification.26 Experience in these
instances has demonstrated that post-certification proedures are not
u It is interesting to note that the same arguments were made by the Company before
the Foremen ' s Panel which concluded that. "Whether the United Automobile Workers
(UAW-CIO) will be able to take over the Foremen's Association, or to dominate it with-
out taking it over, is a matter of conjecture . The result of any such attempt would neces-
sarily depend partly upon whether the foremen wished to remain independent . . .
( Report of Foremen's Panel, ibid , at page 29). Officials of the Association stated at the
hearing in the instant case that they did not desire or intend to affiliate with any other
labor organization and that there was, in their opinion, no need for such affiliation. The
Constitution of the Association provides that it shall not affiliate with any labor organiza-
tion, and in its contract with Ford , the company has the right to terminate the agreement
in the event of such affiliation.
25 Boeing Aircraft Company, Murray Corporation of America , and General Motors Cor-
poration, supra.
20 Matter of Cramp Shipbuilding Company, 52 N. L. R. B. 309 ; Matter of Larus & Brothel
Company, 54 N. L. R. B. 1345; Matter of Western Cartridge Company, 55 N. L. R. B. 1171;
Matter of Shell Petroleum Corporation , 52 N. L R . B. 313.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impraticable, for they do not require us to "police" the certifications
in the usual sense of that word. The self-interest of the parties oper-
ates to call to our attention material changes in circumstances without
the necessity of our constant surveillance. Thus, if the present pro-
ceeding should result in the certification of the Association and if,
following that, there should ocur material changes in circumstance
which result in difficulties that prove insoluble, we can, in a post-
certification proceeding, apply an appropriate remedy. All this, of
course, is a matter of speculation, and the field of labor relations being
as fluid and complex as it is, no blueprint for the future can now be
drawn. If difficulties do arise in a future case, we will, as we must,
resolve them upon the facts as they appear in the record of that case.'?
The Company argues, nevertheless, that apart from the alleged con-
nection between the Association and the CIO and the possibility that
the Association may become affiliated, the establishment of a bargain-
ing unit of supervisors would undermine the accepted techniques of
production and management which have made American industry
what it is today. Foremen are a "part of management," the Com-
pany contends, and owe a duty of undivided allegiance to their em-
ployers; this allegiance would be divided, or even lost, if the Com-
pany were obliged to bargain collectively with them through their
Association. -
First, it must be remembered that foremen have the right to form,
and join labor organizations quite apart from and outside the Act.
This is 'a fundamental right, the right of free association, which'was
not created, but implemented, by the Act. The statute we administer
was enacted to insure that this already existing right could be exer-
cised in a peaceful and orderly manner so that the flow of goods and
services in interstate commerce would not be interrupted. Thus, to
deny the foremen in this case the protection of the Act is not to deny
them the right to form and join their union or to demand collective
bargaining rights from their employer. It would only be a denial of
access to peaceful procedures to exercise that right.
27 While the question is not before us here, in an appropriate case, in which the record
discloses the proper autonomy with respect to groups of supervisory employees , Chairman
Millis, in accord with his position expressed in his dissent in the Maryland Drydock case,
would find no obstacle to recognition in the affiliation of such groups with non -supervisory
employee organizations.
From an experience in labor relations covering approximately 30 years , it is also Chair-
man Millis ' considered judgment that the problems which inevitably arise from the recogni-
tion of any class of employee, including supervisory employees , will find their best and most
prompt solution in'a system of collective bargaining where both labor and management
display sincerity and cooperation in day-to-day relationships and proceed to analyze and
resolve their differences instead of holding fast to and debating unestablished assumptions
In view of the developments since the decision in Maryland Drydock , which have been
discussed above, Member Houston regards the question of representation of supervisory
employees by unions affiliated with organizations admitting to membership employees other
than supervisors as entirely open and one which ought to be fully reconsidered when the
issue is raised in an appropriate proceeding.
PACKARD MOTOR CAR COMPANY 1 19
. But more importantly, we cannot assume, as the Company does, that
self-organization for collective bargaining would prove incompatible
with the foreman's faithful performance of his duties. Such an as-
sumption is not only repugnant to the basic democratic philosophy
upon which this Act is founded, but it has never proved valid in our
experience under the Act. In the early days, the same fears were
expressed by employers with respect to the fidelity of rank and file
employees, but experience has proved them groundless. And more
recently, employers, including the present Company, predicted that
the organization of plant guards would divide the allegiance of these
employees and undermine plant discipline and security.28 But the
Company conceded at the hearing that its plant guards who have been
organized for several years have not performed their tasks any less
faithfully or efficiently because of their organization in a collective
bargaining unit. We perceive no reason for assuming that recog-
nition of the bargaining rights of foremen will have a different result.
The foremen in the present case have been organized, though not
recognized, for 21/2 years and admittedly have not become inefficient
or disloyal in the performance of their duties. If organization with-
out recognition-an unstable situation at best-has not had this un-
toward result, we believe there is even less reason to expect such a
result when the employer accords full recognition to the bargaining
rights of his foremen. In any event, there is nothing in the statute
as designed or administered which protects disloyal or inefficient em-
ployees and the Company may always resort to its normal disciplinary
powers to insure faithful and efficient job performance by its em-
ployees of all ranks. Moreover, it is to be noted that this kind of loy-
alty is really not involved in the question raised by the present petition.
The foremen here are seeking to establish their right to bargain col-
lectively with their employer regarding matters relating to their
wages, hours and conditions of work. With respect to these matters,
the foreman owes no duty of loyalty to his employer, for in this aspect
of his employment relationship, he deals with management at arms
length and must rely ultimately upon his own bargaining power to
gain concessions just as any rank and file employee. One of the fore-
men witnesses at the hearing, while admitting that in the performance
of his job he owed a duty of loyalty to his employer, stated that with
respect to such matters as his own wages, hours and conditions of work
his primary duty was to himself and his family. With this summa-
tion we agree, and we fail to see why a foreman is likely to perform
his duties less efficiently or with less fidelity merely because he is
bargaining collectively with his employer on matters relating to his
wages, hours and conditions of work. Certainly, we cannot now con-
See, for example, Matter of Packard Motor Car Company, 47 N. L It. B. 932; Matter
of Chrysler Corporation, 44 N. L. It. B. 881.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude that this is true solely on the basis of the Company's prediction.
In such matters, we must rely upon experience as our guide.
The Company argues further that the foremen do not need collective
bargaining, since it has been found by the Foremen's Panel that their
grievances are not substantial. Even if it be assumed, arguendo, that
the foremen have no just cause to complain about their wages, hours,
or conditions of work, and that the Company has been fair to them
in these matters, nevertheless, there remains a grievance which, as we
have pointed out above, is more basic, namely, the denial by their
employer of their right to participate in the decisions which affect
their welfare as employees. The fact that foremen have struck for
recognition even though, as the Company asserts, they have no other
just grievances, demonstrates the fundamental character of this griev-
ance and its tendency to engender industrial strife. This fact was
recognized by the Foremen's Panel, and it is this basic grievance of
all employees which the Act was designed to remedy, for Congress
found that the denial by employers of this democratic right of par-
ticipation results in strikes. Thus, the jurisdiction of this Board does
not depend upon such matters as, the fairness of wage rates. The
test of our jurisdiction is to be found in the purposes of the legislation.
Congress sought, in the Act, to reach as far as its powers could go to
eliminate strikes and other industrial strife arising out of the denial
by employers of the collective bargaining rights of their employees.
We believe that Congress intended to, and did in fact, reach far enough
to remedy the situation in the present case.
We do not'say that the recognition of the collective bargaining
rights of the foremen is a panacea for all the problems arising out of
their peculiar intermediate position in industry. But we believe that
it is the first essential step toward a solution. The alternative which
the Company proposes-the denial of basic bargaining rights-is a
policy of negation which contributes nothing to a constructive solu-
tion. We have examined the issues in this case with extreme care not
only because of the vital importance of the question to the Nation, but
also because we fully appreciate the desirability of achieving a meas-
ure of certainty as to the administrative rulings of this Board. We
feel, however, that we would be remiss in our duty as public officials
if we permitted our reluctance to alter the existing rule to blind us to-
the effects of the powerful economic forces which have manifested
themselves since that rule was laid down. The movement for the
organization of foremen is no longer a future possibility , it is an
existing fact; and the importance of their organizational development
can hardly be exaggerated, for supervisory employees constitute a
large and strategic segment of the working force in mass industry.
The Nation has now' experienced the drastic consequences of extra-
PACKARD MOTOR CAR COMPANY 21
statutory organization by supervisory employees, and the duty of this
Board has become plain. To continue to deny to such employees as a
class the bargaining rights guaranteed by_the Act would be to ignore
the clear economic facts and invite further industrial strife-a state
of affairs which the Nation can ill afford at this time and which the
Act was designed to mitigate 29 We are now convinced that the na-
tional interest will be better protected if the organizational activities
of foremen are conducted within, rather than without, the framework
of the collective bargaining statute.30
We turn now to a consideration of the sole remaining question : the
appropriate grouping of the employees affected by the petition. At
the hearing the Company took no position with respect to the proposed
unit except to contend that no unit of supervisory employees would be
appropriate. However, at the oral argument before the Board, the
Company stated that, if the Board were to find that supervisors could
constitute appropriate units, then its position was that it objected to
the inclusion in a single unit of four classes of foremen.
The Company conducts its principal manufacturing operations in
115 buildings located on an 84-acre tract in the city of Detroit. In
addition, it has recently acquired two additional buildings in
Detroit-the Bundy Tubing Plant and the old Hupp Plant-to which
it is presently extending its operations. The four classes of super-
visors in all of these buildings are covered by the petition. The pres-
ent manufacturing operations are carried on in two principal divi-
sions, the Aircraft Division and the Car and Marine Engine Division.
(The use of the word "Car" is historical only.) For the purposes of
differentiation the two main divisions are referred to as "Plants" and
the subdivisions of the two main divisions as "divisions." These two
principal Plants are broken down into approximately 20 divisions
and these divisions in turn are broken down into approximately 300
departments. Substantially all of the employees in the proposed unit
work in the manufacturing plants.
The managerial and supervisory hierarchy of the Company is set
out in the following chart. The number after each job title indicates
20 We are not unmindful of the fact that, as the Company points out, the Act has not
eliminated all strikes . Employees still strike for better wages, hours, and working condi-
tions, and for the redress of grievances , real or fancied . The operation of the Act, while it
undoubtedly mitigates , cannot prevent all such strikes , for collective bargaining itself is not
infallible . However, the Act does afford a direct and primary remedy for a major cause
of strikes-the denial of recognition . As we pointed out above , the statistics show that
since the Act was passed vast numbers of rank and,file employees have found it unnecessary
to strike in order to gain recognition , for they have been able to secure that right by resort-
ing to the peaceful and orderly procedures of the Board we believe it reasonable to pre-
dict that the same results will flow from the recognition of those rights for supervisory
employees.
80 We hereby overrule our decisions in Boeing Aircraft Company, Murray Corporation of
America, and General Motors Corporation, supra, and , to the extent that it is inconsistent
with the present decision , Maryland Drydock Company.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the number of persons employed in that category as of December 2,
1944.
Title Number
President ------------------------------------------------ 1
Executive Vice President------------------------------ -- 1
Vice President of Engineering----------------------------- 1
Manager of Aircraft Engine Plant-------------------------- 1
Assistant Manager of Aircraft Engine Plant---------------- 1
Night Superintendent Aircraft Engine Plant-------------'-- 1
Asst. Superintendent Aircraft Engine Plant---------------- 1
Manager of Car and Marine Engine Plant------------------ 1
Executive Assistant Car and Marine Engine Plant ----------- 1
Managers of Divisions (Includes Master Mechanic-Plant
Engineer-Chief inspector) ----------------------------- 16
Assistant Managers of Divisions (Includes Assistant Master
Mechanic-Assistant Plant Engineer-Assistant Inspec-
-.tors) -------------------------------------------------- 32
Superintendents of Divisions (Some Superintendents as shown
by the Charts have the same jurisdiction as Managers or
Assistant Managers)------------------------------------ 20
General Foremen----------------------------------------- 125
Foremen ------------------------------------------------- 643
Assistant Foremen --------------------------------------- 273
Special Assignment Men----------------------------------- 65
As of November 30, 1944, the total number of employees at the plants
involved in this proceeding was 32,533.
The general foremen at Packard are in charge of one or more
departments, the record indicating that the maximum number under
any one general foreman is four departments. The status of fore-
men and assistant foremen varies. In some departments there are no
foremen; in others there are no assistant foremen. Where there are
no foremen, the duties of the assistant foremen correspond to those of
foremen in other departments, and where there is no assistant foreman,
the foreman does the work corresponding to the job of an assistant
foreman in another department. In general, foremen and assistant
foremen have charge of a segment of the work of an entire department;
they may, for example, be in charge of a subassembly line, or some
other branch of work of the entire department. In other instances,
they appear to be the direct assistants to the general foremen in con-
nection with the work of the whole department. In some cases, their
work is a combination of both. And where a general foreman is in
charge of more than one department, it is common for the foreman
to be the direct head of one of the departments. The special assign-
ment men have the qualifications of general foremen and foremen
and are sometimes used in that capacity if general foremen or foremen
are absent. Principally their duties, which will be discussed below,
are described as "trouble-shooting."
4d
PACKARD MOTOR CAR COMPANY 23
General foremen receive a base monthly pay of $304 . 50; this, with
overtime pay , adds up to approximately $500 a month . Foremen are
paid a base rate of $278 per month; with overtime, this amounts to
$450 or $460. Assistant foremen who are paid by the month, receive
a base rate of $242; a total of $410 or $420, with overtime. Some
assistant foremen are paid by the hour; in this case, their total pay
amounts to about the same as the other assistant foremen. The special
assignment men are paid about the same as general foremen or fore-
men, depending upon their qualifications . These figures are approxi-
mate averages . There are some who receive less, while others who are
connected with work calling for a higher degree of skill receive more.
In general , the status and duties of all classes of foremen at Packard
is the same as that of foremen in other mass production industry which
we have described earlier. At Packard, each foreman is responsible
for the quality and quantity of production of the workers under his
supervision . None of the four classes of foremen performs any manual
work. The general foreman checks the hourly production report to
see that the production in his department has been maintained. If a
breakdown occurs, he must take action to see that it is remedied by the
appropriate departments . It, is his duty to instruct the foremen and
assistant foremen under him and see that they are properly executing
their duties . He is responsible for the safety and cleanliness of his
department or departments . He makes out numerous reports and
signs various types of employee passes. In all these matters he is
under the supervision of and is responsible to his superintendent. The
foremen and assistant foremen, on their level, have similar responsi-
bilities and duties with respect to the men and women over whom they
exercise supervision . The assistant foreman is under the supervision
of the foreman , or in those departments where there are no foremen, the
general foreman. The foreman is directly responsible to the general
foreman. This chain of responsibility proceeds vertically up through
the various supervisory and managerial levels set forth in the chart,
supra. The special assignment men, in addition to serving as sub-
stitutes for absent general foremen and foremen, act as "trouble-
shooters." Thus , for example , if a department runs into difficulty re-
garding the production of a certain part, the special assignment man
is called upon to investigate. If the trouble involves a part that passes
through three or four departments in the process of manufacture, he
may be required to trace it back through all the operations. Or if a
particular job is not running according to plan, he is called upon to
observe and supervise until the deficiency has been corrected. When
the special assignment man is called in to solve a production problem.
he exercises the supervisory authority of a general foreman or fore-
man, whichever is required.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A_ Foreman's School has been in operation at Packard for a number
of years. The school is conducted on a conference basis, the subjects
being, generally planned by the Industrial Relations Manager and the
Manager of the School. All grades of foremen attend this school,
with no distinction whatever between them. The subjects discussed
cover a wide range and include such matters as discussion of the con-
tract with the rank and file union, safety and accident prevention,
waste, management in business, speech habits, morale, plant efficiency,
labor relations, etc.
All classes of foremen have certain privileges and advantages not
enjoyed by the rank and file worker. Thus, while a rank and file em-
ployee receives no pay when absent, -a foreman is paid for justifiable
absences according to a schedule based upon length of service. The
vacation with pay policy is more generous for foremen than for rank
and file, and foremen, unlike their subordinates, receive separation pay
in the event their service with the Company is severed. Salaried fore-
men are paid for holidays since their salary is on a monthly basis, and
they are permitted to report one half hour late for work without being
docked in pay; neither of these privileges is enjoyed by the rank
and file.
The general foreman has supervision over the foremen and assistant
foremen and he may and often does make recommendations to his
superintendent regarding their rates of pay, transfer, rehire, lay-off,
discharge and discipline. However, in no event may he take any action
in these matters without the prior approval of his superiors. The same
is true with regard to physical changes in the departments. All classes
of foremen are expected to and do make suggestions for the improve-
ment of production in their department, but in no case are they per-
mitted to put these suggestions into operation without the approval of
higher management. Thus, if a certain production method is not
working out well in practice, the foreman would report it, sometimes
with recommendations for improvement, to the superintendent or the
division manager who in turn would take the matter up with the plan-
ning or layout departments. The relationship between the foremen
and the rank and file employees over whom they exercise supervision
has been described at an earlier point in this decision.
On the basis of these facts, we believe that collective bargaining can
best be conducted on the basis of a single unit. All four classes of
employees are supervisors who perform no manual work, and while
they usually function on different levels, their duties and responsibili-
ties are substantially alike. Moreover, it is common for a foreman-
like most general foremen-to be in charge of an entire department,
and in cases where there are no foremen in a department, an assistant
foreman will often serve in a position which corresponds to a fore-
PACKARD MOTOR CAR COMPANY 25
man's job in another department. In many respects, the Company
itself treats these employees as a single group. Thus, substantially
all are paid a salary upon the basis of a 40-hour week, with time and
one-half for overtime; all four classes attend the Company's Fore-
man's School, with no distinction whatever between them; all four
classes enjoy certain common privileges and advantages such as justifi-
able absences with pay, vacation with pay, separation pay, the privi-
lege of reporting one half hour late for work without being docked in
pay, and all four wear ordinary street clothes at the plant. It is sig-
nificant that, in their organizational efforts at the Company's plants
and at plants of other employers, these classes of supervisors have
acted as a unit. They consider themselves a middle group between the
rank and file on the one hand and management on the other, and the
facts of modern mass production industry which we have discussed
earlier support this view. Their problems are fundamentally the
same and it is therefore no accident that they have banded together in
the same organization.
The Company believes, however, that notwithstanding this strong
community of economic interest, it would be improper to group the
four classes of foremen together in one-unit since they exercise a degree
of supervision over one another. We do not believe that this fact
alone is of sufficient importance to outweigh the factors which favor
the establishment of a single unit. Moreover, with respect to such
important matters as selection, transfer, promotion, demotion, reclas-
sification, discipline, and discharge, the facts show that the authority
of the supervising foreman over the subordinate foreman is limited to
the making of recommendations to higher management; he has no
power to make decisions or take action on these matters without the
prior approval of a higher authority. In addition, there are compel-
ling practical reasons militating against the creation of four separate
units. It would necessitate the negotiation of four separate con-
tracts, probably with four separate negotiating committees; it might
require the establishment of four separately chartered locals, each
holding independent meetings and functioning through four separate
sets of committees with great duplication of effort both by the union
and the Company. Problems involving the allocation of supervisors
to their proper unit and other related questions would be likely to arise.
Moreover, although such units would be theoretically discrete, all four
classes of foremen would be members of the same union. Such an
unwieldy arrangement, we believe, would create more problems than
it would solve. It is noteworthy that the Association's contract with
the Ford Motor Company embraces in a single unit six classes of super-
visory employees covering an apparently broader portion of the super-
visory hierarchy than the proposed unit in the present case, and this
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrangement does not appear to have created insoluble problems. If
for certain purposes, such as the handling 'of grievances, it becomes
necessary to establish different procedures for the different levels of
supervision, this can be handled in the collective bargaining agreement.
We believe that, upon the basis of the facts in the present case, a single
unit is the most appropriate for the purposes of collective bargaining.
This finding does not preclude a future reconsideration of the unit
question, if the single unit arrangement does not prove feasible in
practice."
Accordingly, we find that all general foremen, foremen, assistant
foremen, and special assignment men employed by the Company at
its plants in Detroit, Michigan, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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 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 Packard Motor
Car Company, Detroit, Michigan, an election by secret ballot shall
be conducted as early as possible, but not later than sixty (60) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Seventh Region, acting in this mat-
ter 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 unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
at In several previous decisions , the Board has found that it would be inappropriate to
group seveial levels of supervisors in a single bargaining unit See, for example , Matter
of Mioray Corporation of America, 47 N L R B 1003, and Matter of Boeing Aircraft Com-
pany, 45 N L R B 630 Upon reconsideration and for the reasons stated above, we now
believe that a single bargaining unit is more feasible , and therefore appropriate , for the -
puiposes of collective bargaining , in a case like the present one « here there is such an
obvious community of interest, and no marked disparity in rank, among several levels of
foremen
PACKARD MOTOR CAR COMPANY 27
date of this Direction, including employees who did not work during
the said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether or not they desire to be represented
by Foreman's Association of America, for the purposes of collective
bargaining.
MR. GERARD D. REILLY, dissenting:
In my opinion, the decision we are making today does irreparable
damage to the delicate balance between the conflicting interests of
management and worker which the National Labor Relations Act
sought to bring about in American industry. From the very begin-
ning of the administration of this Act, the Board has recognized that
in the mass production industries the interests of foremen lay pre-
dominantly with management groups. Consequently, in its decisions
dealing with unfair labor practices, the Board deemed the actions of
a foreman the actions of his employer.'
Less than 2 years ago, a majority of the Board, recognizing that
this historic principle was rapidly being fatally compromised by the
effects of its then recent Union Collieries decision,2 decided in the
Maryland Drydock case I that employers were not required to bargain
collectively with labor organizations composed in whole or in part of
supervisors. The doctrine of this case has become one of the guiding
principles in industrial relations policy in our national wartime econ-
i In the interest of protecting freedom of choice among the workers it has been the almost
invariable practice of the Board not only to exclude foremen from collective bargaining
units in those industries , but also to disestablish labor unions which were formed by super-
visory and subordinate emplo'ees on the ground that such organizations were, ipso facto,
company dominated N. L. R B. v. The Niles Fire Brick Company , 124 F ( 2d) 366 (C C
A 6) , 11 J Heinz Company v N L R B , 311 U S 514, 518 , N L R B v Engineering
Research Corporation, 145 F. (2d) 271 (C C A 4), cert denied 323 U S 801
'Matter of Union Collieries Coal Company , Oakmont, Pennsylvania and Mine Officials'
Union of America (Ind.), 41 N L R B 961, 44 N L R B 165 The reasoning of the
majority and its conclusion in the instant case , in the light of this Board ' s experience, dur-
ing a period of less than 8 months in which the Board 's policy as stated in the Union Col-
lieries case was applied , invite for its appraisal a variety of incongruous situations Indeed,
since the decision does not limit the application of the policy announced therein to cases
where the union involved is unaffiliated and independent of other organizations which
represent rank and file employees , these situations comprise a veritable Pandora's box
of incongruities See Matter of Godchaux Sugars, Inc. 44 N L R B 874 ; Matter of
Stanley Company of America, 45 N. L It . B 625 , where the Board was presented with
the problem of a unit of supervisory employees at a time when the ordinary eia,,Ao)ees
nod not yet organized for collective bargaining As I noted in my dissent in that case,
there can be little doubt in such a situation as to the form that organization of oidinary
employees will take if the Board permits their supervisors to choose bargaining agents
under the Act Matter of Boeing Aircraft Company, 45 N L R B 630 . Matter of South-
western Bell Telephone Company , 45 N L R B 1078
3 Matter of The Maryland Drydock Company and Local No. 31 of the Industrial Union
of Marine and Shipbuilding Workers of America, 19 N. L . R B. 733.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only. Although challenged on the date of its issuance in a dissenting
opinion by Chairman Millis as "administrative legislation ," there
has been no effort made by any member in Congress to overrule it by
legislative amendment 4 It has been widely accepted as a rule of
decision by State courts , State boards and federal arbitrators dealing
with cognate problems.5 Yet, for all practical purposes , and at a time
when any fundamental change in well established rules cannot but
have an unsettling effect upon essential war production , this decision
is now being overruled.
While I'would be the first to agree with my colleagues that we should
not shut our eyes to recent developments and believe emphatically that,
to the extent that we have discretion under the statute, any decision
of this Board should be overruled if its impact has a disastrous effect
upon sound industrial relations , I find wholly unconvincing the argu-
ments now advanced for the view that the Maryland Drjdock rule has
proved unworkable in practice . In fact, it seems to me that any com-
plete appraisal of the industrial history of the last 2 years demonstrates
its essential correctness . As the text of the majority opinion in that
case clearly shows, the Board at that time was fully aware that the
economic position of the foremen would be improved if the Act were
extended to facilitate collective bargaining by them. It was concluded,
however , that the benefits which might thus accrue to supervisory em-
ployees were outweighed by the dangers inherent in the commingling of
management and employee functions , and in the possible restrictive
effect upon the freedom of rank and file employees.
The dissenting opinion in that case , however, contending that these
dangers were not supported by evidence ( although , of course the ma-
jority observations were based upon the same premise implicit in the
treatment by the entire Board of foremen in unfair labor practice
cases) and, relying upon ex parte testimony given by a spokesman for
the foremen 's organizations in hearings before this Board and Con-
* There is some attempt in the majority opinion to claim that the result reached con-
forms to the intent of Congress. In view of the fact that supervisors were never men-
tioned either in committee or on the floor at the time of the passage of the Wagner Act,
I have never regarded such arguments as particularly fruitful, especially as the definition
of "employee," unlike that contained in the Railway Labor Act, does not specifically
include "subordinate officials " The real truth of the matter seems to be that Congress
scarcely adverted to the question until the repercussions of the Union Collieries decision
invited the attention of the House. Then a bill to amend the Act so as to exclude super-
visors from its provisions, gathered considerable legislative momentum in the House Mili-
tary Affairs Committee. Before the bill was reported out, however, the Maryland Drydock
decision was issued.
"Hathaway Bakeries, Inc. v. Massachusetts Labor Relations Comm., Mass . Sup. Jud.
Ct. ; 55 N. E. (2d) 254; Division 1327 of the Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of America v. Pennsylvania Labor Relations Board
(Pittsburgh Railways Company Employees' case), Pa. Ct. of Common Pleas, Allegheny
County, No. 2053, July 27, 1944. See Opinion of the General Counsel, National War
Labor Board, relative to the status of foremen before the War Labor Board, 14 L. R. R.
415 (May 1944). New York is an exception. See Allegheny Ludlum Steel Corporation
v. Kelly, N. Y. Sup. Ct , Chautauqua County No. 185, July 27, 1944.
PACKARD MOTOR CAR COMPANY 29
gressional committees, argues that the grievances of foremen were so
real and numerous that their right to bargain collectively under the
protection of the Act should not be denied if there was "proper provi-
sion for organizational autonomy."
In controversies of this sort, it has been aptly said that " a page of
history is worth a volume of logic."'8 Fortunately, on both points the
inexorable facts now leave no room for speculation. The experience
of the last 2 years has made it clear (1) that the standard foreman
grievances, so repeatedly cited in argument before this Board, have by
reason of an exhaustive investigation 7 of a panel of the War Labor
Board turned out to be largely fanciful; (2) but to the extent to which
the organization of foremen has expanded, the danger of collaboration
with rank and file unions to the detriment of individual freedom of
choice and established management techniques has proved all too real.
In enacting the National Labor Relations Act, Congress in the pre-
amble of the statute stated as one of its reasons an "inequality
of bargaining power between employees and . . . employers .. .
[which] tends to aggravate recurrent business depressions by depress-
ing wage rates and the purchasing power of wage earners in industry."
Since one of the crucial questions in this controversy is the intent of
Congress, it would seem extremely far-fetched to believe that the Con-
gress had in mind the kind of employees involved in the case before us.
While there are undoubtedly some industries in which foremen are
underpaid and neglected, the financial plight of the foremen in the
Packard Motor Company can hardly be advanced as the reason for
giving such supervisors legal encouragement -to organize. As the ma-
jority opinion reveals, the employees in the bargaining unit which this
decision finds appropriate receive salaries ranging from $5,000 to
$6,000, including overtime compensation. The findings of the War
Labor Board Panel, to which reference has already been made, fill out
this picture. The foremen in the industries in which the Foreman's
Association of America is active do not fall into the category of that
"one-third of the Nation-ill-fed, ill-housed and ill-clothed," 8 for
whose relief the social legislation of the New Deal was enacted. In-
stead, these men, according to the Panel, fall into the upper third of the
Nation's income bracket. The Panel also found that in the very com-
pany in the instant case, as well as in the other companies where strikes
have been conducted by the Foreman's Association of America, the rec-
ord did not support the conclusion that these corporations allowed the
Per Holmes , J ; in New York Trust Company v. Eisner, 256 U . S. 329.
° Report and Findings of a Panel of the National War Labor Board in Certain Disputes
Involving Supervisors, W. L. B. A-3397.
This phrase was originally used by the President in a message to Congress advocating
passage of the Fair Labor Standards Act. In subsequent speeches, however, he described
all the social legislation sponsored by the Administration as having this general objective,
639678-45-vol. 61-4
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foremen to be by-passed in handling grievances, or failed to back them
up wherr they attempted to impose discipline. Moreover, with respect
to promotions, demotions and discharges, it was found that there were
no serious grievances at Packard.'
Recent developments have made it equally clear that in the strongly
organized industries, foremen's associations possess no real autonomy
so far as effectuating their bargaining objectives unless they ally them-
selves in their policies and tactics with representatives of the employ-
ees whom they are hired to supervise. When this happens, of course,
the proper line of demarcation between supervisor and supervised
becomes hopelessly confused. It will be recalled that when the Union
Collieries case was heard, the organization of mine officials whose pe-
tition for an election was entertained was an independent union.
Shortly thereafter, it was given a charter by the United Mine Workers.
Failing to achieve recognition by the operators, this new affiliate
called a number of strikes last fall in various coal mines. Pursuant
to Section 8 of the Smith-Connally Act, this Board conducted strike
referenda in these mines. Although in several instances a majority
of the foremen voted against striking, in every case reported to us
the strike call brought about a complete stoppage as the miners re-
fused to cross the picket lines of this supposedly autonomous union.
In other words, in order to'make these strikes effective, the foremen's
group found it necessary to achieve the same degree of collaboration
with the production workers that exists among constituent unions of
the Building Trades Department of the A. F. L. on a construction
project.
It is common knowledge that under normal industrial conditions,
strikes of factory foremen have little chance of succeeding, for the
places of the strikers can readily be filled by promotion from the
Typical of the findings of the Panel are the following
"The supervisors in the cases before it are in general well paid . are . . in the
upper third of income receivers in the nation as a whole . . are among the highly paid
employees of American industry." (p 142)
,The general level of compensation does not appear to be a serious complaint" (p. 142)
"Except in the Baldwin case, the Panel does not find that failure to pay for overtime
work is an unresolved grievance ." ( p 150)
"The record does not support the conclusion that companies involved intend to allow the
foremen to be by-passed in handling grievances Nor does it support the contention that
these companies fail to back up their foremen when the foremen attempt to impose dis-
cipline " (p. 153)
"The greatest fear of foremen today is that they will be laid off or demoted when cut-
backs and cancellations of war orders occur This fear seems to be a principal reason why
the interest of foremen in organizing is out of proportion to the nature and gravity of
their grievances In all of the companies before the Panel except one the war has caused
enormous expansion of the rank and file workers and a corresponding increase in the number
of supervisors ." ( p. 155)
"The Panel does not believe that it would be in the public interest for the National War
Labor Board or any other government agency to prescribe a rule to govern managements
in deciding which foremen they shall lay off , demote , or transfer " ( p 158)
"The panel does not recommend that the Board approve the foremen's request that
grievance procedure terminate in an appeal to a referee or arbitrator." (p. 165)
PACKARD MOTOR CAR COMPANY 31
ranks from which the foremen themselves were originally selected.
The record of this case reveals that in order to prevent its strikes from
being broken, the Foreman's Association of America, the petitioner
in the instant case, though nominally independent, has also been
driven to resort to treaties of mutual aid and assistance with rank
and file unions. In response to a question from the bench, counsel
for the petitioner admitted in oral argument that "when the foremen
struck there was a direct and express agreement between us ,and the
responsible C. I. O. leaders that members of the C. I. O. Maintenance
and Production Workers Union would not be permitted to take the
place of foremen." 10 And in answering a question as to whether there
was any agreement with the C. I. O. against crossing picket lines of
the foremen, he stated that there had been in Republic Steel and that
this matter was "adjusted in each plant in each instance.", - Can
anyone doubt that if such an "agreement" or "adjustment" was being
negotiated on the eve of a foremen's strike, that supervisors would be
inclined to think twice before overruling any union steward on griev-
ances, no matter how unfounded, or disciplining, for infractions of the
plant rules, employees influential in the rank, and file union whose
consent was necessary to the strike agreement? Is it theoretical to
assume that the average worker, whose susceptibility to his foreman's
influence we have so often noted in unfair labor practice cases, would
hesitate to advocate adoption by his union of policies evincing lack of
sympathy with the objectives of the organization to which his fore-
man belongs? Under these circumstances, "proper provision for or-
ganizational autonomy" is as unrealistic as the former notion-now
discredited by the majority opinion-that the mere placing of differ-
ent levels of supervisors in separate bargaining units somehow
achieved the effect of segregating conflicting interests into watertight
compartments. It is difficult'to find any logical distinction between
supervisors' unions which have such alliances with the rank and file
groups, and the labor organizations which we have hitherto proscribed
because of the presence of supervisors in their councils.
I turn now to the arguments advanced by the majority for. the
theory that the Maryland Drydock rule has been found wanting in the
light of recent developments. Briefly summarized these arguments
seem to boil down to this :
(1) Foremen in mass production industries have lost much of the
authority and policy making functions they possessed in the 1900's,
10 Transcript of Oral Argument , Packard Motor Car Company, at p. 71.
u Id , p 73, Counsel also added that •
I am bound to say I hope l will never hear of a foreman crossing a picket line by
anything but agreement . . and I hope that we won't be faithless to our obligation
to our fellow worker, and we hope he won't be to us, but as an equal give and
take.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and have viewed with some envy and resentment the superior collec-
tive bargaining strength of the organized workers they supervise.
(2) Consequently, the membership of the Foreman's Association has
greatly increased'12 and, being denied access to the certification pro-
cedures of the Wagner Act, it has conducted strikes for recognition
which have interrupted war production in several key plants. There-
fore, it is urged that, since one of the purposes of the Wagner Act is
to promote industrial peace, our rules of decision should be changed
so as to compel employers to recognize the Foreman's Association as
collective bargaining agent whenever it represents the majority of
any supervisory group.
Other than the fact that there have been strikes, I do not find any
"recent developments" to justify this conclusion. There is nothing.
startling in the finding that foremen in the mass production industries
differ from foremen in the small shops of the 1900's. This was a de-
velopment which occurred long before the passage of the National
Labor Relations Act, and the expansion of heavy industry in recent
years has simply accentuated the trend. We have adverted to it in
prior cases. Moreover, it must be remembered that it is in these very
mass production industries that company unionism developed in the
1920's and 1930's, and it is this very class of foremen, whom the -Board
now depicts as shorn of their management prerogatives, that, we have
always regarded as employer representatives when we find them en-
gaged in any union activity which runs counter to the organizational
efforts of a competing union 13
As for the strikes,-hardly an unforeseen phenomenon in the light of
the prediction contained in the dissenting opinion in the Maryland
Drydock case 14-I readily concede the importance of uninterrupted
war production and concede that the particular strikes which occurred
in the Detroit plants last spring would probably not have occurred if
employers had been compelled to recognize the Foreman's Associa-
32 while the majority opinion notes that the Foreman 's Association grew from approxi-
mately 10 ,392 in 1942 to 32,142 in 1944, it does not make clear whether most of this
growth occurred before or after the Maryland Drydock decision . It appears, from a
radio address of Robert Keys , the President of the Association , that the total membership
stood at 15,000 in May 1943 so that it approximately doubled between the date of the
Maryland Drydock decision and the date the hearing in the case was closed In view of
the fact, however , that the organization has a potential membership of more than a million
in the industries which it is seeking to organize , it is difficult to agree with the conclusion
that its expansion was not retarded by this Board's policy of dismissing petitions filed
by it.
12 In the printing industry where we have permitted foremen to , be included in the
bargaining unit, we have not imputed the actions and utterances of foremen to their
employer , except where they are specifically authorized to act as management 's spokes-
men. See Matter of it. it. Donnelley & Sons Co , 60 N. L. R. B 635.
14 Maryland Drydock, supra, p. 749.
. Of course , foremen, as employees , have the right to organize and to seek recog-
nition. Perhaps many employers will regard it as wise to grant this recognition . Insofar
as such voluntary recognition is withheld , foremen must `grin and bear it' or resort to the
use of their economic power , an alternative which the Act was meant to discourage."
PACKARD MOTOR CAR COMPANY 33
tion. Unfortunately, however, while a certification may take one
issue out of the arena, it may merely be substituting the possibility
of others. Our own files show that in most of the strikes which have
occurred in wartime, the organizations involved were unions to which
the orderly procedures of this Act were available. As we recently
noted in our Annual Report,'-' the bulk of the strike notices seem to
arise from dissatisfaction with the decisions of some government
agencies. It is.unfortunately no novelty to have disgruntled unions
strike and interfere with production because this Board had refused
to recognize units which they proposed as appropriate. Such de-
fiance, however, can scarcely be deemed a justification for retreating
from well-established legal principles. If strikes of this sort are suf-
ficiently numerous to bring about substantial impairment of the flow
of materials to the theatres of war, a wiser remedy would be legisla-
tion conferring upon this Board the same power to invoke judicial
process against recalcitrant labor organizations which it now possesses
with regard to disobedient employers. And since the foremen's strikes
described by the majority were already known to the Board last fall,
such recommendation might properly have been included in our last
Annual Report to Congress. The adoption of the alternative course
proposed by the majority smacks of a "peace-at-any-price" policy.
In any event, it would seem that any possible immediate gain in
the way of eliminating some of the causes of strife is more than out-
weighed by the general long range impact of this decision upon in-
dustrial relations. A most disturbing feature of the majority opinion
is the plain implication that all the bars are down which have hitherto
been invoked to confine management and labor within their proper
,spheres of influence. It is true that the text does give some recogni-
tion to the dangers of divided allegiance if the foreman's organization
is affiliated with the same union which represents the rank and file,
since stress is laid upon the fact that the petitioning labor organiza-
tion admits only supervisors to membership and is not affiliated with
any other group. It also goes on to suggest that the certification
could be revoked if any material change in the petitioner' s present
status should develop. This is rather a curious doctrine coming from
this quarter. The authors of the present opinion also comprise the
Board majority which has consistently adhered to the proposition
enunciated in the plant-protection cases 16 that once the Board had
15 Ninth Annual Report, p. 73, 74.
'° This issue first arose in Matter of Packard Motor Company , 47 N L R B . 932, where
a labor organization, already representing the production and maintenance workers, peti-
tioned for a unit of plant-protection employees . The petition was opposed by the Company
on the ground that in the collective agreement for the production workers the union had
agreed not to accept or admit to membership plant guards . A majority of the Board
consisting of Messrs . Millis and Leiserson rejected the Company ' s contention holding :
"No provision in the Act permits the Board, the employer , or a labor organization not
acting as the statutory representative of the employees whose rights are in issue, to prevent
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fixed the boundaries of an appropriate bargaining unit, it was power-
less under the statute to reject as unqualified any representative
selected by the majority. It therefore appears that the Board is now
claiming a power over foremen's units which it disclaimed in the plant
guard situation. If it lies within our discretion to overcome the un-
desirable aspects of divided allegiance in the foremen's cases by
insisting that supervisors must have a different bargaining agent from
the workers they supervise, it would seem incumbent upon us to exer-
cise the same discretion with respect to monitorial employees,17 where
the factor of divided allegiance is present, although in a lesser degree.
It should be noted, however, that the bargaining unit which this
decision defines includes persons in different levels of supervision, viz.,
general foremen, foremen, assistant foremen and special assignment
men, although the higher officials have the power to make recommen-
dations concerning rates of pay, transfer; rehire, lay-off, discharge
and discipline of the supervisors in the next lower bracket, a factor
'which certainly infringes upon freedom of choice under all the ac-
cepted criteria in the company domination cases. A large portion of
the opinion is devoted to minimizing the resultant danger of dig-
loyaltyby pointing out that the company may always resort to its
normal disciplinary powers against disloyal or inefficient supervisors.
Such an argument, of course, ignores the administrative difficulties of
supervising the supervisor. It is particularly strange to find such a
theory advanced in a tribunal created within the framework of Anglo-
American jurisprudence which from earliest times had laid down the
principle 18 that a fiduciary may not serve conflicting interests, and
that the mere possibility of temptation renders voidable any transac-
tions made in a dual capacity, irrespective of their honesty.
Even more significant is the apparent indifference of the Board to
the close relationship of the petitioner with unions of production
workers affiliated with the C. I. 0. which the record revealed. Al-
though the alleged independence of the Foreman's Association, in
such employees from exercising their right to bargain collectively in an appropriate unit
through any bargaining agent whom they may desire to act as their exclusive representa-
tive " [ Emphasis supplied
I dissented on the ground that the provision of the contract acted as an estoppel. In
subsequent cases where this same precise issue was present Mr Houston concurred with
the original majority view See Matter of Ford Motor Company , 47 N L. R. B 946 ;
Matter of Ford Motor Company , 47 N. L R B 939 ; Matter of Federal Motor Truck Com-
pany , 54 N L. R B. 984; Matter of Packard Motor Car Company, 60 N L R B 324
17N L R B v Jones & Laughlin Steel Corp , 146 F (2d) 718 (C. C A. 6), setting aside
53 N. L R B 1046 N. L. R B v Federal Motor Truck Company , 146 F ( 2d) 718
(C. C A 6), setting aside 54 N. L. R B. 984
18 Michaud, et at v. Girod, et al, 45 U . S 503, 555 where an agent owes fidelity to his
principal , the law does not make the principal wait until the agent has been unfaithful and
then punish him. " it provides against the probability in many cases, and the dan-
ger in all cases , that the dictates of self interest will exercise a predominant influence, and
supersede that of duty " Pepper v. Litton, 308 U. S 295 ; Meinhard v. Salmon, 249 N. Y.
458. 164 N. E . 545 (1929).
PACKARD MOTOR CAR COMPANY 35
view of the holding in the Soss case,19 was one of the pertinent issues
in this proceeding, the majority of the Board in advance of the hearing
refused to instruct its trial examiner to obtain evidence on this point 20
Such facts as do bear on the question therefore were either introduced
by the Company or elicited from petitioner's counsel at the argument
before the full Board. Included in this former category were the
resolutions of support on the part of the Michigan C. I. 0. Council,
the refusal of the organized steel workers at Republic to cross the
foremen's picket line, and the interference of production workers at
Briggs with the plant officials who tried to maintain continuous op-
eration during the strike. A tendency to view these facts as imma-
terial is also illustrated by the majority's holding certain related evi-
dence to be inc6mpetent,21 although in other respects the majority
opinion makes the widest use of secondary material and even personal
experience. It would therefore seem that despite the footnote ex-
pressing the view of one member that the applicability of the present
decision to affiliated organizations is still an open one, there is little
doubt as to the form such a decision will take when a case presenting
this issue arises.
In making these observations, I am fully aware that there is a
school of thought which will regard them as unduly pessimistic, in
view of the fact that foremen for many years have been organized
in the printing, maritime, railroad and building construction indus-
tries. This state of affairs has frequently been cited as disproving the
theory that industrial efficiency is impaired or union democracy frus-
trated by the presence of foremen and workers in the same bargaining
organization. These examples have little relevance to the controversy.
For one thing, only two of these industries-the printing and maritime
trades-even fall within the scope of the National Labor Relations
Act, and the pattern of collective bargaining established in them grew
up quite independently of this statute and in some respects is quite
19 Matter of Soss Manufacturing Company, 56 N. L R B 348. In this case , protection
under the Act for supervisors with respect to holding union membership was limited to
mere passive membership in a craft organization or membership and activity in organiza-
tions composed entirely of foremen and completely unaffiliated with groups representing
production workers.
20 Minute of Executive Meeting of the Board, December 16, 1944 :
"Packard Motor Car Company, 7-R-1884 • The Board , with Board Member Reilly 'dis-
senting, rejected Board Member Reilly ' s recommendation that the Trial Examiner in this
case be instructed to elicit evidence concerning the source of the petitioner ' s funds and
the nature of its expenditures , its connection , if any, with the UAW-CIO or other unions
which admit production workers to membership , and the extent , if any, to which it has
sought or received support from the UAW-CIO or other affiliated unions in organizing or
in making its strikes effective
21 The evidence found to be incompetent consisted of a pamphlet distributed at the
Murray Corporation , asking for the support of the rank and file, and a report of a hear-
ings officer of the Michigan Unemployment Compensation Commission, rejecting certain
production workers' applications for unemployment insurance on the ground that the
claimants had participated as sympathetic strikers in a stoppage called by the Foreman's
Association of America
36 DECISIONS OF (NATIONAL LABOR RELATIONS BOARD
contrary to its basic concepts. Because of the traditions of the sea,
implemented by the admiralty laws, there is little danger of the officers
and crew merging their respective labor organizations. , In the news-
paper field, where the foreman is traditionally a member of the Print-
ers' Union, the composing room staff operates almost as independ-
ently of the publisher as would be the case if the work was done by a
job printing establishment.22, Then again , in none of the enumerated
industries is this country particularly unique, and the technological
developments in these fields in recent years have been relatively minor.
An entirely different spectacle is presented by the mass production
industries, where the constant development of technological science,
with the resultant subdivision of labor operations, requires constant
attention in the coordination of production with 'supervisory and
engineering techniques. It is these industries which have made this
country the foremost industrial nation of the world and contributed
so heavily to war production, and it is in these industries that the basic
principles of the National Labor Relations Act have been most fre-
quently applied. It therefore seems to me that we may well be forcing
these industries and their employees into a Procrustean bed when we
project upon them practices which have grown up in entirely unrelated,
fields.
22 In many newspapers there is a rule that the only "representative of management"
who is permitted to go into the composing room and give any directions is the make-up man
from the news room, and his duties are confined to see that the make-up conforms with
the "dummy" prepared at the copy desk.