Soss Manufacturing Co.

National Labor Relations Board - Board Decisions

May 8, 1944

56 N.L.R.B. 348 (N.L.R.B. 1944)

In the Matter of SOSS MANUFACTURING COMPANY and FoR.EMEN's
ASSOCIATION OF AMERICA
In the Matter Of REPUBLIC STEEL CORPORATION (98" STRIP MILL) and
FOREMEN'S ASSOCIATION OF AMERICA
Cases Nos. 7-C-1148 and 8-C-1569, respectively-Decided May 8,1944
DECISION ON APPEAL
These cases are now before us at the request of the Foremen's Asso-
ciation of America, a labor organization admitting only supervisory
personnel and unaffiliated with any labor organization admitting rank
and file employees, for review of the action of the Regional Directors
of the Seventh and Eighth Regions, respectively, in refusing to issue
complaints upon charges filed by the Foremen's Association of Amer-
ica. The charges in each case allege that the company involved dis-
criminatorily discharged certain named foremen because of their mem-
bership and activities on behalf of the Foremen's Association of Amer-
ica, thereby engaging in unfair labor practices within the meaning of
Section 8 (1) and (3) of the National Labor Relations Act, herein-
called the Act. '
The issue posed by these cases is whether the discharge of a person in
a supervisory capacity because of his membership in and activities on
behalf of a labor organization whose membership is confined to super-
visory personnel, such as the Foremen's Association of America, con-
stitutes an unfair labor practice within the meaning of Section 8 (1)
and (3) of the Act.
In view of the general interest in the question, the Board provided
for an open hearing and invited representatives of labor organizations
and employer groups to participate at an oral argument held before
the Board at Washington, D. C., on February 15, 1944. Numerous
representatives appeared and participated and subsequently filed state-
ments and briefs which have been considered by the Board.
At the hearing, two sharply divergent courses were urged upon the
Board-by representatives of industry and labor groups, respectively.
The spokesmen for the labor groups argued that since the term "em-
ployee," as defined in Section 2 (3) of the Act, is not restricted to non-
supervisory employees, the Board was compelled as a matter of law to
deem supervisor's within the protection of Section 8 (1) and (3).
56 N. L. R. B., No. 70.
348
SOSS 'MANUFACTURING COMPANY 349
The primary contention made by the employer representatives was
that supervisory officials are not employees within the meaning of
the Act and that, consequently, none of the unfair labor practice Sec-
tions of the Act apply to such persons. In support of this contention
we have been directed to the language of the Act itself, to certain as-
pects of the legislative history of the Act and related statutes, to various
arguments based on modern .industrial organization, and to our
decision in the Maryland Drydock Company case.,
It is our view that neither of these extreme positions can, be recon-
ciled with the principles enunciated by this Board in the Maryland
Drydock case. The argument that any person employed by a corpora-
tion is entitled to the full protection of the Act because of the absence
of specific limiting language in Section 2 (3) is the very argument re-
jected as untenable in the Maryland Drydock case. We assumed in the
Maryland Drydock case that the supervisory' personnel involved were
"employees" within the Act, but we nevertheless refused to hold that
such persons could constitute an appropriate bargaining unit. Nor,
on the other hand, is the contention that minor supervisors cannot
be deemed "employees" within the meaning of the Act persuasive. The
definitions in Section 2 of the terms "employer" and "employee" 2 are
not mutually exclusive, and there is judicial authority for the view
that under certain circumstances supervisors may be employees.3
Moreover, the legislative history of the Act and related legislation
lend little support to either of these extreme positions. While it was
argued that the, use of the terms "worker" and "labor" in other por-
tions of the Act indicate an attempt to exclude all supervisory person-
nel, we are not convinced that the use of these words in the light of
the broad generic meaning given to them in different contexts throws
much light on the problem. The committee reports and the records of
the debates in the House and Senate are completely barren of any
1 49 N L R B. 733.
2 Sec 2 When used in this Act-
(2) The term "employer" includes any person acting in the interest of an employer, di-
rectly or indirectly, but shall not include the United States, or any State or political sub-
division thereof , or any person subject to the Railway Labor Act , as amended from time to
time, or any labor organization (other than when acting as an employer), or anyone acting
in the capacity of officer or agent of such labor organization
(3) The term "employee" shall include any employee , and shall not be limited to the
employees of a particular employer, unless the Act explicitly states otherwise, and shall in-
elude any individual whose work has ceased as a consequence of, or in connection with any
current labor dispute or because of any unfair labor practice, and who has not obtained any
other regular and substantially equivalent employment, but shall not include any individual
employed as an agricultural laborer , or in the domestic service of any family or person at his
home, or any individual employed by his parent or spouse
3 See, for example , N. L. R B. v. Skinner and Kennedy Stationery Co., 113 F . ( 2d) 667
(C. C A 8) enf'g 13 N. L R B 1186 ; Matter of American Potash and Chemical Corpora-
tion, 3 N. L. R. B. 140, enf'd 98 F. -( 2d) 488 (C. C. A. 9) ,; Eagle-Picher Mining and Smelt-
ing Company v. N. L. R. D, 119 F. (2d) 903.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
references to the problem as to whether supervisory employees are
within the coverage of the Act .4
Our attention has been directed to the Railway Labor Act of 1934,
as amended, in which Congress expressly defined the term "employee"
to include "subordinate officials." It was stressed by employer repre-
sentatives that the omission of corresponding language from the defi-
nition of the same term in the Labor Relations Act must be viewed as
evincing a Congressional intent to exclude supervisory employees from
the purview of the Labor Relations Act. We do not believe that such
an inference is properly drawn', nor, conversely; that the inclusion of
"subordinate officials" in the employee definition in the Railway Labor
Act provides a fair basis for inferring that the Labor Relations Act
must be similarly construed. As contrasted to the relatively narrow
area covered by the Railway Labor` Act and the fixed and established
collective bargaining patterns within that area, the wide and changing
variety of collective bargaining forms and practices in the large indus-
trial area subject to the jurisdiction of the Labor Relations Act impels
the view that Congress, rather ,than attempting an exact definition,
left to the' administrative determination of the Board in each case the
duty of deciding whether a particular type of worker, not specifically
excluded, is within the ambit of the unfair labor practice Sections
of the Act.
This view finds ample support in the recent opinion of the Supreme
Court in National Labor Relations Board v. Hearst Publications, Inc.,
U. S. Nos. 336-339, October Term, 1943, where Mr. Justice Rutledge,
speaking for the Court, stated :
It is not necessary in this case to make a completely definitive
limitation around the term "employee." That task has been as-
signed primarily to the agency created by Congress to administer
the Act. Determination of "where all the 'conditions of the re-
lation require protection" involves inquiries for the Board charged
with this duty. Everyday experience in the administration of
the statute gives it familiarity with the circumstances and back-
grounds of employment relationship in various industries, with
the abilities and needs of the workers for self-organization and
collective action, and with the adaptability of collective bargain-
ing for the peaceful settlement of their disputes with their em-
ployers. ' The experience thus acquired must be' brought fre-
quently to bear on the question who is an employee under the
Act. Resolving that 'question, like determining whether unfair
labor practices have been committed "belongs to the usual admin-
istrative routine" of the Board.
4 See Maryland Drydock Company, 49 N. L. R. B . 733, at p. 738.
SOSS MANUFACTURING COMPANY 351
I
This conclusion is in harmony with the cases 5 in which the Board
held that the certification of units composed in whole or in- part of
supervisory employees would not effectuate the policies • of -the Act.
In those decisions , the Board was not faced with any theoretical prob-
lem of industrial relations , but with the necessity of solving some
very practicable problems which had arisen in the industrial field.
Employers throughout the country were confronted with the dilemma
of being faced with charges of unfair labor practices no matter what
course of action they adopted in dealing with their foremen . If they
permitted them to take an active ' part in the organization of unions
and the soliciting of employees for membership they were guilty of
domination and support of a labor organization under Section 8 (2) 6
(if the union happened to be unaffiliated ), or of illegal interference
and assistance under Section 8 (1) and ( 3) if the union was an
affiliated one.7 But, on the other hand, if they discharged such super-.
visory officials they were confronted with the possibility of falling
within the prohibition of Section 8 (3).8 Moreover , the very existence
of this situation tended to disrupt well-established relationships be-
tween management and labor . The express purpose, of course, for
which foremen and other supervisory officials are hired , is to repre-
sent management in its dealings with production workers. In such
situations , management is, of course , entitled to the undivided al-
legiance of the foremen , which implies such foremen being free from
the orders and directions of organizations composed primarily of
subordinate employees.
It was these anomalous situations - which the Maryland Drydock
opinion sought - to correct . For this reason we were constrained to
reject the view that supervisory officials in mass production industries
were entitled to be placed in appropriate units for the purpose of
having collective bargaining representatives under Sections 9 (c) and
8 (5). '
- For analogous reasons, we applied the principle of the Maryland
Drydock case to independent unions of foremen in the Boeing, Murray
Corporation and General Motors cases 9 although the dilemma con-
fronting employers by reason of the notion that persons for-whose
conduct they were responsible had unlimited rights under the Act was
not immediately present in those situations. 'A certification of a labor
organization as the exclusive representative of employees under See-
1
c See Maryland Drydock Company, supra; Matter of Boeing Aircraft Company, 51 N L.
R. B 67; Matter of The Murray Corporation of America , 51 N L R. B . 94; Matter of Gen-
eral Motors Corporation , 51 N. L. R B. 457.
6 See, e. g., Matter of M. E. Blatt Company , 47 N. L R B 1055.
T See , e. g., Matter of Eagle -Picher Mining and Smelting Co., 16 N. L. R B. 727, enf'd as
modified 119 F. ( 2d) 903 (C. C. A 8).
8 See, e g , Matter of Golden Turkey Mining Company , 34 N. L. R. B. 760.
0 See footnote 5, supra.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e
tion 9 of the Act, on the basis of an election, is customarily valid for
at least 1 year. It is calculated to stabilize industrial relations by
foreclosing any question of representation, and thus clearly defining
the duty of the employer, during that period.10 It is obviously im-
practical for us to premise our certifications upon a prediction that a'
union of foremen will not affiliate' with non-supervisory groups during
the period of a certification, or to police our certifications, once issued."
We do not depart from our decisions in 111ar'yland Drydock and
the related cases which followed it ; we reaffirm them and the consider-
ations upon which they are based. , But the patent differences between
the Maryland Drydock problem and that presented by the instant
cases are self-evident. Here we are not dealing with the period of a
certification, running into the future, but with alleged unfair labor
practices occurring at a fixed point of time in the past, the correction
of which will require merely the restoration of the status quo. - We
are not called upon to predict the future course of the labor organiza-
tion involved, here the Foremen's Association of America, but only
to appraise its status at a past period and the employer's conduct with
respect to it at a point of time which will be spread before us in the
record of the proceedings.
As we have seen, moreover, the Maryland Drydock case did not lay
down the hard , proposition that, supervisors were not "employees."
It is therefore much too broad an interpretation of this decision to
say that it necessarily means that any person having supervisory
duties may be discharged or` otherwise discriminated against for his
union membership and have no recourse under the Act. For example,
if a foreman in a pattern shop or in an electrical department could be
discharged because he had retained his membership in his particular
craft union for the purpose of being eligible for employment in other
union shops or to retain such insurance and death benefit rights as he
obtained from his payment of union dues, it would seem on the face
of it a serious discouragement to membership in such organizations.
On the other hand, if such persons held union office or engaged in
influencing the union allegiance of their subordinates, an employer
would be fully justified in taking appropriate steps necessary to pre-
serve his own neutral position. Moreover, our opinion in that case
did not illegalize collective bargaining outside the framework of the
Act for the supervisors' organizations. An employer, should he be
so disposed, may still elect with legal immunity voluntarily to bargain
nates." k
10 See, e. g, N. L. R B. v. Century ' Caford Mfg . Corp., 140 F . ( 2d) 541 ( C C. A. 2) enf'g
47 N L A. B 835.
11 In Maryland Drydock , we observed that "although supervisors may nominally constitute
a separate bargaining unit, it is clear that they may-as they did in the case at bar-affiliate
with and designate as their representative the same union which represents their'suboidi-,
SOSS MANUFACTURING COMPANY 353
with a labor organization composed of supervisors, provided that such
bargaining does not also have the effect of interfering with the pro-
tected rights of other employees. It is true that in the Maryland
De,/dock case the Board announced that "full benefit of their [the
employees'] right to self-organization and to collective bargaining"
would not be insured were an employer subject to an order to bargain
with employee supervisory groups. But it is quite another matter
to say that this holding created a prohibition against voluntary recog-
nition and the establishment of collective bargaining relationships by
mutual agreement between employers and supervisory employees.
From the premise that supervisory employees, under Board policy,
may not constitute appropriate units and thus utilize the processes and
sanctions of the Act to compel bargaining, it does not follow that an
employer may therefore disregard the rights to -self-organization
and to engage in concerted activities for mutual aid and protection,
which are guaranteed to all employees under the Act, and discriminate
against such employees because of their exercise of such rights.12 A
statute containing the basic guarantee of freedom of association cannot
be so narrowly construed as to exclude particular occupational groups
from its broad coverage except where such limited construction is
necessary to give full effect to the rights of the great majority of per-
sons within its scope and to avoid interpretations which would make
the Act unworkable in practice.
We conclude that supervisors are "employees" and that supervisory
,status does not by its own force remove an employee from the pro-
tection of Section 8 (1) and (3) of the Labor Relations Act.
In reaching this conclusion we do not mean to suggest, of course,
that every discharge of a supervisory employee for engaging in union
activity is a violation of the Act. As well as being employees, super-
visors are also representatives of management and their conduct is
held attributable to their employer when it interferes with the rights
of ordinary employees to self-organization and collective bargaining.
That being true, we recognize the right of an employer to protect his
neutrality by requiring his supervisory employees to refrain from
unneutral activities which impinge upon the rights of their subordi-
nates, and to take appropriate measures to that end. Consequently, the
12 The right of employees to protection under Sections 8 (1) and 8 (3) is not bottomed on
Section 8 (5) of the Act The legislative history of Section 8 (5) itself confirms this view
In the original bill which was presented to Cougiess, no provision for the imposition of an
affirmative duty upon employers to bargain collectively was made It was considered that
the basic purpose of the legislation was achieved by the enactment of Section 7 and the first
four subsections of Section 8 Only after authorities pointed out the desirability of avoiding
harassing litigatiton on the question whetlier the duty to bargain could be inferred from the
broad grant of rights in Section'7 and restraints on employers in the first four subsections
of Section 8 did Congress add the fifth subsection . ( Sen. Rep. 573, 74th Cong., 1st Sess.,
p. 12.)
587784-45-vol. 5G 24
J
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right under the Act of supervisors to protection in their organizational
and other concerted activities is not an unqualified one, but is subor-
dinate to the organizational rights and freedom of rank and file em-
ployees, and to the need of an employer to maintain his neutrality.
In the cases now before us we are concerned solely with the question
of the right of employers to discriminate against foremen because of
their membership and activities in an independent labor, organization
whose membership is confined to supervisory employees. Adherence
of supervisory officials to such an organization cannot normally have
any impact upon the rights of ordinary employees, nor can it nor-
mally affect an employer's position of neutrality. On the basis of the
charges before us, and without determining the merits of the cases,
we are of the opinion that the supervisory status of the foremen-alleged
to have been discriminated against presents no bar to findings of vio-
lations of Section 8 (1) and (3) of the Act.
'We shall accordingly sustain the appeals of the Foremen's Associa-
tion of America in the above-captioned proceedings, to the extent noted,
and shall advise the Regional Directors of the Seventh and Eighth
Regions to take further steps in accordance with the statute, including
the issuance of complaints if such appears to be otherwise warranted.
Separate opinion of CHAIRMAN HARRY A. Muaas:
I concur in the conclusion of my colleagues that "supervisors are
`employees' and that supervisory status does not by its own force re-
move an employee from the protection 'of Section 8 (1) and (3)J of
the Labor Relations Act." My interpretation of the decision is that
the instructions given our Regional Offices some months ago not to ac-
cept 8 (3) charges in behalf of foremen are withdrawn and that
charges of discrimination against foremen will be treated, case by case,
under principles underlying decisions made by the Board through-
out the years prior to, and also largely since, the decision in the Mary
land Drydock case was made.
I do -not concur altogether ih the rationale upon which the present
decision is based, but, unlike my colleagues, it is unnecessary for me to_
distinguish my position in this case from the majority- holding in the
Maryland Drydock case. My views on the question involved in .that
case are set forth in my dissenting opinion. I am still convinced of
the soundness of, those views.