The Trenton Potteries Co.

National Labor Relations Board - Board Decisions

Jul 17, 1946

69 N.L.R.B. 567 (N.L.R.B. 1946)

In the Matter of THE TRENTON POTTERIES COMPANY and NATIONAL
BROTHERHOOD OF OPERATIVE POTTERS, LOCAL 208, A. F. L.
Case No. 4-R-1748.-Decided July 17, 1946
Cravath, Swaine d Moore, by Messrs. C. A. Mclain and E. E. Bu-
chanan, of New York City, for the Company.
Messrs. E. L. Wheatley and James A. Solon, of Trenton, N. J., for
the Union.
Mr. Harvey B. Diamond, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by National Brotherhood of Operative
Potters, Local 208, A. F. L., herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of The Trenton Potteries Company, Trenton, New Jer-
sey, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Helen F.
Humphrey, Trial Examiner. The hearing was held at Trenton, New
Jersey, on May 14, 1946. The Company and the Union appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner reserved ruling for the
Board on the Company's motion to dismiss the petition herein. For
reasons stated in Sections III and IV, infra, the motions are hereby
denied. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Trenton Potteries Company is a New Jersey corporation hav-
ing its offices and plants in Trenton, New Jersey. The Company man-
69 N. L . R. B.. No. 72.
567
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ufactures vitreous china and porcelain plumbing fixtures for
bathrooms, kitchens, hospitals, etc. During the calendar year 1945
the Company used raw materials valued in excess of $350,000, of which
more than 95 percent was shipped from points outside the State of New
Jersey. During the same period the Company produced finished prod-
ucts valued in excess of $350,000, of which more than 95 percent was
shipped to points outside the State of New Jersey.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. THE ORGANIZATION INVOLVED
National Brotherhood of Operative Potters, Local 208, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its supervisory employees until
the Union has been certified by the Board in an appropriate unit.
The Company contends that the Board lacks jurisdiction to certify
the Union as the collective bargaining representative of the foremen
involved in this proceeding on the ground that the foremen are "em-
ployers" rather than "employees" under the definitions contained in
the Act. The status of foremen under the Act has been considered
in. a number of Board and court decisions. Both the Board' and the
courts z have held that foremen are "employees" within the meaning
of the Act. Accordingly, we find that the foremen who are the sub-
jects of this proceeding are "employees" within the meaning of Section
2 (3) of the Act.
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 DETERMINATION OF REPRESENTATIVES
The Union seeks a unit of all foremen and general foremen em-
ployed by the Company in Plant No. 5 and Plant No. 6, including
the supervisor of the plant protection force, and the crew supervisor
of the slip house in Plant No. 5, but excluding the superintendents,
assistant superintendents, working foremen, the timekeeper, the
'Hatter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66
N. L. R. B. 386, and the cases cited therein.
2 N. L. R. B. v. Armour & Company, 154 F. (2d) 570 (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. R. B.,v.
Skinner & Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8).
THE TRENTON POTTERIES COMPANY 569
clerical supervisors, and plant clerical employees.3 The Company ob-
jects to the appropriateness of the foregoing unit upon the grounds
that : (1) the supervisors are an inseparable part of management
and the certification of the Union as bargaining representative would
create a dualism of loyalty between the Company and the Union; and
(2) the Union petitioning herein is incompetent to represent super-
visors inasmuch as it is a part of the National Brotherhood and as
such would be dominated by the locals representing the production
and maintenance employees.4 The Company further urges that in
the event the Board does find the unit appropriate the general fore-
men be excluded therefrom.
The contention of the Company that its foremen are such an insep-
arable part of management that certification of the Union would
result in a serious conflict of loyalties and possible disruption of
operating efficiency, rests upon the responsibilities of these supervisors
in regard to the hire, discharge, discipline, and promotion of employ-
ees, the operation of its grievance procedure, and the fixing of certain
piece rates. This same general contention has been considered by
the Board in a number of recent decisions .5 In the L. A. Young,
General Mills, and Jones c Laughlin cases, these questions were dis-
cussed at length, and the majority of the Board there concluded that
the function of deciding the appropriate unit is a positive one. Once
the Board determines that certain individuals are "employees" within
the meaning of the Act, then it becomes its duty under Section 9 (b)
to group these "employees" in an appropriate unit. The nature of
the duties and responsibilities of the foremen in question is relevant
only insofar as it bears on the determination of the proper grouping
for collective bargaining purposes.
The Company's second contention has been considered and disposed
of in a number of recent cases' wherein we held that supervisory
employees are normally entitled to an unrestricted choice of collective
bargaining representative.
There remains for disposition the question as to whether or not to
include the general foremen in the unit requested by the Union. The
three general foremen ar employed in Plant No. 6, and are responsible
3 There are approximately 30 foremen and 3 general foremen in the alleged appropriate
unit.
4 The Company has contracts with Locals 45, 49 and 87, covering all production and
maintenance employees in both plants. Membership in Local 208 is limited to supervisory
employees.
5 Matter of L. A. Young Spring & Wire Corporation, 65 N. L. R. B. 299; Matter of The B. F.
Geodrich Company, 65 N. L. R. B . 294: Matter of Jones & Laughlin Steel Corporation,
Vesta-Shannopin Coal Division, supra; and , Matter of General Mills, Inc., 66 N. L. R. B.
1423.
6 Matter of Jones & Laughlin Steel Corporation , Vesta-Shannopin Coal Division, supra;
Matter of The Curtis Bay Towing Company of Pennsylvania, et al., 66 N. L . R. B. 1152;
Matter of United Steel and Wire Company , 67 N. L. R. B. 240.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the operations of the casting department, the kiln department, and
the warerooms. They supervise the work of the foremen in their
departments and may recommend the discharge of foremen but cannot
hire or fix the salaries of supervisory employees. The foremen and
general foremen are on a salary basis, have the same vacation and
sick leave policy, and some foremen earn as much money as the general
foremen. Although we do not agree with the contention of the Com-
pany that general foremen should be excluded from the unit, we find
that the duties and responsibilities of the general foremen are suffi-
ciently different from those of the foremen to warrant separate group-
ing, and we shall therefore give the general foremen the opportunity,
by separate voting, to-determine whether or not they wish to be in-
cluded in the same unit with the 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
ordered hereinafter. In the event that the employees in the voting
groups described below, voting separately, select the Union, they
shall together constitute a single appropriate unit.
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) The three general foremen of the Company employed in
Plant No. 6.
(2) All foremen employed by the Company in Plant No. 5 and
Plant No. 6, including the supervisor of the plant protection force and
the crew supervisor of the slip house in Plant No. 5, but excluding
executives, superintendents, assistant superintendents, working fore-
men, the timekeeper, clerical supervisors, and plant clerical employees.
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 Trenton
Potteries Company, Trenton, New Jersey, separate elections by secret
ballot shall be conducted as early as possible, but not later than thirty
'Matter of The Midland Steel Products Company, Parish & Bingham Division, 65 N. L.
R. B. 997.
THE TRENTON POTTERIES COMPANY 571
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Fourth Region, acting in
this matter as agent for the National Labor Relations Board, and sub-
ject to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the voting groups described in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces of
the T7nited States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine in each of the voting groups whether or not they
desire to be represented by National Brotherhood of Operative Pot-
ters, Local 208, A. F. L., for the purposes of collective bargaining.
MR. GERARD D. REILLY, concurring separately :
My position in this case is the same as that expressed in my con-
curring opinions in The Midland Steel Products Company and West-
i.n.ghouse Electric Corporation cases." As in those cases, I would
direct no election in this matter since all the persons who are the sub-
ject of this petition are supervisors. My views on this question, as
expressed in the dissenting opinions in the Packard Motor case 8 and
the Jones cg Laughlin case,"' are equally applicable to the facts in the
instant case. Since the majority of the Board entertain a contrary
view however, I wish to concur in the conclusion that the general fore-
men should be balloted separately so as to ascertain whether or not
they desire to be in the same bargaining unit which includes the fore-
men. There is sufficient evidence in the record to indicate that the
duties and responsibilities of the general foremen are distinguishable
from those of the foremen.
MR. JOHN M. HOUSTON, concurring separately :
For the reasons stated in my concurring opinion in The Midland
Steel case, cited above, which I find equally applicable here, I would
provide for only one voting group including general foremen.
8
Matter of The Midland Steel Products Company ( supra ); Matter of Westinghouse
Electric Corporation ( East Springfield Works ), 66 N. L. R. B. 1297.
9 Matter of Packard Motor Car Company , 61 N. L. It. B. 4.
10 Matter of Jones & Laughlin Steel Corporation , Vesta- Shannopin Coal Division, supra.