The Midland Steel Products Co.

National Labor Relations Board - Board Decisions

Feb 12, 1946

65 N.L.R.B. 997 (N.L.R.B. 1946)

In the Matter of THE MIDLAND STEEL PRODUCTS COMPANY, , PARISH
BINGHAM DIVISION and FOREMAN 'S ASSOCIATION Or AMERICA, MID-
LAND STEEL CHAPTER #105
Case No. 8-R-1865.-Decided February 1?, 1946
Messrs. TV. 7'. Kinder, Frank C. Heath., and A. J. Livingston, of
Cleveland, Ohio, for the Company.
Mr. Bernard Konopka, of Detroit, Mich., for the Union.
Mr. Bernard Goldberg. of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by Foreman's Association of America,
Midland Steel Chapter #105 , herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of The Midland Steel Products Company, Parish R Bing-
ham Division, Cleveland, Ohio, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Thomas E. Shroyer, Trial Examiner. The
hearing was held at Cleveland, Ohio, on June 22 and July 9, 10, 11,
and 12,1945. The Company and the Union appeared and participated.
All parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. At the hearing, the
Company moved to dismiss the petition on the following grounds :
(a) the Board lacks jurisdiction because the supervisors whom the
Union seeks to include in the unit are not employees within the meaning
of the Act; and (b) the proposed unit is inappropriate because it
includes several levels of supervision. The Trial Examiner referred
this motion to the Board. For reasons stated hereinafter, the motion is
hereby denied. All parties were afforded opportunity to file briefs
with the Board. The Company's request for oral argument is hereby
denied.
65 N. L. R . B., No. 177.
997
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE I USINESS OF THE CO3MPANY
The Midland Steel Products Company, an Ohio corporation, is
engaged in heavy stamping operations at a plant in Cleveland, Ohio,
known as the Parish & Bingham Division. In 1944 the Company
had gross sales aggregating approximately $17,000,000. During the
6 months preceding the hearing, approximately 30 percent of the raw
materials used by the Company was shipped to the Cleveland plant
from sources outside the State of Ohio. During the same period,
about 60 percent of the Company's manufactured products was shipped
out of the State.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Foreman's Association of America, Midland Steel Chapter _1t105,
unaffiliated, is a labor organization admitting supervisory employees
of the Company into membership.
III. TIIE QUESTION CONCERNING I:EL'RESENTATION
The Company has declined to recognize the Union as the collective
bargaining representative of any of its supervisory employees on the
ground that supervisors are part of management.
The initial argument urged by the Company in support of its motion
to dismiss the petition is that the supervisors involved in this proceed-
ing are not employees within the meaning of the Act. The status of
foremen and comparable supervisors under the Act has been considered
in a number of Board and court decisions. Both the Board 1 and
the courts 2 have concurred in holding that foremen have a dual aspect
under the definitions of "employer" and "employee" contained in the
Act. When he acts in the interest of his employer, a foreman is an
"employer"; but when he acts in his own interest, as when he seeks to
better the terms and conditions of his employment, he is an "employee."
There is no inconsistency in recognizing such duality of status. Ac-
cordingly, we find that for the purposes of this proceeding the super-
'Matter of So88 Manufacturing Company, et at., 56 N. L R . B. 348 . Matter of Packard
Motor Car Company , 61 N. L. R B. 4, and 64 N. L. R. B. 1212; Matter of L. A. Young
Spring & Wire Corporation , 65 N. L. R. B. 298 ; Matter of The B. F. Goodrich Company, 65
N. L. R. B 294.
2N. L. R. B. v. Armour and Co., 17 L . R. R. 372 (C. C. A. 10, Nov. 5, 1945 ) ; Jones
Laughlin Steel Corporation V. N. L. R B., 146 F. (2d) 833 (C. C. A. 5) ; N. L. It. B. v.
Skinner & Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8).
THE MIDLAND STEEL PRODUCTS COMPANY 999
visors herein considered are employees within the meaning of Section
2 (3) of the Act.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit claimed by it to be appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit to include the following employees : assistant
foremen, foremen, departmental superintendents, night superin-
tendent, purchasing agent, assistant purchasing agents, production
manager, assistant production managers, lay-out engineers, traffic
manager, assistant traffic manager, chief of priorities, safety engineer,
and chief of plant protection. The Company contends that (a) the
unionization of the personnel involved herein would not effectuate the
policies of the Act and would be contrary to the public interest, (b)
the Union is not independent of the United Automobile Aircraft &
Agricultural Implement Workers of America, CIO, herein called the
UAW, which represents the Company's production and maintenance
employees and plant-protection employees in separate units, and (c)
the proposed unit is inappropriate because it includes several levels of
supervision, some of the supervisors having supervisory authority
over other employees in the same unit.
The supervisory hierarchy in immediate and full time charge of
the Cleveland plant consists of the following:
1 Division Manager
1 Factory Manager
1 General Superintendent and 1 Night Superintendent
11 Departmental Superintendents
17 Foremen
37 Assistant Foremen
Department superintendents 4 are each in charge of a department.
Foremen and assistant foremen are in charge of sub-departments or
smaller groups within the department. Generally, assistant foremen
are responsible to foremen who in turn are supervised by departmental
superintendents. However, in one department there are no inter-
mediate supervisors between the departmental superintendent and
8 The Field Examiner reported that the Union submitted 77 application cards and dues
receipts and that there are approximately 100 employees in the unit which the Union
claims is appropriate.
4 Union witnesses referred to departmental superintendents as general foremen.
1000 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
the assistant foremen and in several other departments there are no
supervisors below the rank of foremen. Departmental superintend-
ents in the production division are responsible to the general super-
intendent; the other departmental superintendents are variously re-
sponsible to the plant engineer, the factory manager, or the division
manager.
The individual departments vary in the number of personnel em-
ployed. The smallest department has, in addition to the depart-
mental superintendent, only one subordinate supervisor and a hand-
ful of rank and file employees. The largest department has 11 sub-
ordinate supervisors below the rank of departmental superintendent
and about 200 or 300 non-supervisory employees.
Although foremen usually do have assistant foremen as well as
non-supervisory employees working under their direction, the powers,
duties, and responsibilities of the foremen and assistant foremen are
substantially the same. As the Company states in its brief : "These
powers, ditties, and responsibilities rest on both the Foremen and
Assistant Foremen, although, of course, the Foreman carries more
responsibility than the Assistant Foreman. The Assistants, however,
must and do take over any one of these responsibilities, in the event
the Foreman is absent or busy on other matters."
The line of cleavage between the departmental superintendents
on the one hand and their subordinate foremen and assistant fore-
men on the other, is sharper than that between foremen and assistant
foremen. For example, departmental superintendents represent the
Company in the second stage of the grievance procedure prescribed in
the contract with the UAW whereas foremen or assistant foremen act
for the Company in the initial stage. Further, departmental super-
intendents, but not foremen or assistant foremen, attend regular
weekly meetings with the general superintendent and factory manager
at which various problems affecting plant operation are discussed.
In addition to these regular weekly meetings, departmental super-
intendents also attend special meetings called by the division manager
to discuss specific problems as, for instance, an accumulation of griev-
ances by rank and file employees, new business, and lay-offs resulting
from declining business.
Departmental superintendents, foremen, and assistant foremen all
punch time clocks. They are indiscriminately paid either on an
hourly or salaried basis. The usual perquisites that accompany the
different forms of wage payment, such as overtime for hourly paid
employees and no loss of pay for sickness or lateness in the case of
salaried employees, are applicable to departmental superintendents
as well as to foremen and assistant foremen.
'A particular foreman or assistant foreman may be specially invited to attend any of
the meetings. Usually, however, they are not asked to be present.
TIDE MIDLAND STEEL PRODUCTS COMPANY 1001
The departmental superintendents and the foremen have the power
effectively to recommend a change in the status of their subordinate
supervisors. There is some dispute as to whether, in addition to recom-
mending the discharge of a subordinate supervisor, the departmental
foreman and foremen have the power to discharge outright : the Com-
pany contends that they have this power; the Union denies it. In any
event, the discharge of a supervisor seems to be a rare occurrence.
Only one such discharge occurred in the 2 years preceding the hearing,
and that discharge was made by the division manager, apparently on
the recommendation of the general superintendent.
In the recent Youag case ,6 we discussed the purpose and policy of
the Act. We pointed out that the National Labor Relations Act was
intended to encourage the practice of collective bargaining as a means
of settling labor disputes and that this policy was as applicable to
labor disputes involving foremen as to those pertaining to rank and
file employees. Accordingly, we find no merit in the Company' argu-
ment that a unit of its supervisors would not effectuate the policies of
the Act.7
The Company has also contended, in effect, that the Union is not
independent of the UAW which represents rank and file employees.
To sustain this position, the Company relies on evidence which is
essentially identical with that introduced in the Packard cases to prove
a similar contention. In holding that it would entertain a petition
for a unit of foremen filed by an independent, unaffiliated supervisors'
union, the majority of the Board in the Packard case decided that the
Foreman's Association of America was such an independent labor
organization. In subsequent cases, the Board has made the same de-
termination with respect to locals of the Foreman's Association." In
accord with previous decisions, we find that the Union is an indepen-
dent, unaffiliated labor organization organized for the exclusive pur-
pose of representing supervisory employees.
The third objection made by the Company to the appropriateness of
the unit is that it includes several levels of supervision, some of the
employees having supervisory authority over others. As we have
seen, there is no marked disparity in the authority, duties, and respon-
sibility of foremen and assistant foremen. Some of the foremen ex-
ercise supervision over assistant foremen; others do not. Under the
circumstances, we believe that the foremen and assistant foremen
should be treated as a single group.
On the other hand, the differences between the departmental super-
intendents (who have many of the attributes of the general foremen
6 Matter of L A. Young Spring & Wire Corporation, 65 N. L. R. B. 298
7 See Matter of The B. F. Goodrich Company, 65 N. L. It. B. 294.
8 Matter of Packard Motor Car Company, 61 N. L. R. B. 4.
a Matter of L. A. Young Sprang & Wire Corporation, supra; Matter of The B. F. Goodrich
Company, supra.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Packard case) and the next lower level of supervision are greater
than those existing between foremen and assistant foremen. Although
this circumstance, together with the fact that departmental superin-
tendents have the power effectively to recommend a change in the
status of their subordinate foremen and assistant foremen, suggests
some advantages to the Board's establishing departmental superinten-
dents in a separate unit, we believe that the common backgrounds, in-
terests, and problems of the different levels of supervisors establish a
community of interest which makes it inadvisable for the Board to
exercise its own power to reach that result.
A majority of the Board 10 believes, however, that before they are
included in an over-all foremen's unit, the departmental superintend-
ents, who are few in number, should be given the opportunity by
separate voting to determine whether or not they desire to be in the
same unit with assistant foremen and foremen. Accordingly, we shall
make no final unit determination at this time, but will be guided by
the desires of the employees involved as expressed in the elections or-
dered hereinafter. In the event that the employees in the voting
groups described hereinafter, voting separately, select the Union, they
shall together constitute a single appropriate unit.
There remains for consideration the disposition to be made of certain
fringe groups which the Union desires to include in the unit. Es-
sentially the Union seeks a unit of supervisors of production and main-
tenance employees plus some doubtful classifications discussed herein-
after:
Night superni tendent: This employee is subordinate to the general
superintendent but exercises the functions of the latter on the night
shift. Inasmuch as the general superintendent is an agreed exclusion,
we shall also exclude the night superintendent.
Purchasing agent: This employee supervises two assistant purchas-
ing agents and three clerks who are excluded from the rank and file
production and maintenance unit. We shall exclude the purchasing
agent and the assistant purchasing agents as clerical supervisors.
Production manager: This person supervises two assistant produc-
tion managers and four clerical employees who are excluded from the
rank and file production and maintenance unit. We shall exclude the
production manager and the assistant production managers as clerical
supervisors.
Lay, out engineer: This employee has no subordinates. Inasmuch as
lie is not a supervisor within the Board's definition, we shall exclude
him.
Traffic manager: This employee, who is in charge of shipping, super-
vises 1 assistant traffic manager, 3 assistant foremen and 40trank and
10 Chairman Herzog and Member Reilly.
THE MIDLAND STEEL PRODUCTS COMPANY 1003
file employees who are included in the rank and file production and
maintenance unit. We shall include the traffic manager in the voting
group of departmental superintendents and the assistant traffic man-
ager together with the assistant foremen in the voting group of fore-
men and assistant foremen.
Chief of priorities: This employee, who is in charge of applications
to various governmental agencies for priorities and allocations, has
no subordinates. We shall exclude him.
Safety engineer: This employee supervises nurses, sanitation men,
cleaning women, and laborers, all of whom are included in the rank
and file production and maintenance unit. He is in charge of safety
and the investigation of accidents. He neither has nor is required to
have engineering schooling or training. We shall include him in the
voting group of foremen and assistant foremen.
Chief of plant protection: This employee supervises 14 guards en-
gaged in protecting plant property. The guards are organized in a
separate unit. However, we shall include him in the voting group of
foremen and assistant foremen.
We shall direct that separate elections be held among the employees
in the voting groups described below who were employed during the
pay-roll period immediately preceding the date of the Direction of
Elections herein, subject to the limitations and additions set forth
in the Direction :
(1) All assistant foremen and foremen, including assistant traffic
manager, safety engineer, and chief of plant protection, but excluding
night superintendent, purchasing agent, assistant purchasing agent,
production manager, and assistant production manager.
(2) All departmental superintendents, including traffic manager,
but excluding assistant foremen, foremen, assistant traffic manager,
safety engineer, chief of plant protection, night superintendent, pur-
chasing agent, assistant purchasing agent, production manager and
assistant production manager.
As stated above, there will be no final determination of the appro-
priate unit pending the results of the elections.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Midland Steel
Products Company, Parish & Bingham Division, Cleveland, Ohio,
separate elections by secret ballot shall be conducted as, early as pos-
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sible, but not later than thirty (30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director for
the Eighth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Sections 10 and 11,
of said Rules and Regulations, among employees in the voting groups
described in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
wer0 ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine in each of the
voting groups whether or not they desire to be represented by Fore-
man's Association of America, Midland Steel, Chapter #105, for the
purposes of collective bargaining.
MR. JOHN M. HOUSTON, concurring specially:
I concur in the foregoing decision, except insofar as it establishes
separate voting groups for departmental superintendents on the one
hand and foremen and assistant foremen on the other. , Granted that
there are hierarchical differences in the noted classifications, I find
that the basic employment interests of the three groups are substan-
tially similar and that the factors cited in our decision to support our
conclusion that separate bargaining units would be inappropriate like-
wise should negate the necessity of segregation for voting purposes.
I would, therefore, establish only one voting group of the three classifi-
cations.
MR. GERARD D. REILLY, concurring separately :
It would be my position, if this were a case of first impression, that
no election should be directed in this matter, since all the persons who
are the subject of this petition are supervisors, and•the business in-
volved here does not differ in any relevant respect from the kind of
business carried on by the Packard Company' Since the majority of
the Board entertain a contrary view, however, I wish to concur in the
conclusion that the departmental superintendents should be balloted
separately so as to ascertain whether or not they desire to be in the
same bargaining unit which includes the assistant foremen and fore-
men. There is sufficient evidence in the record to indicate that the
duties and responsibilities of this group are distinguishable from the
lower levels of supervision.
' My views on this basic question are contained in the dissenting opinion in the Matter of
Packard Motor Company , 61 N L R. B. 4