NATIONAL LABOR RELATIONS BOARD v. PACKARD MOTOR CAR CO. AND (FOREMAN‘S LEAGUE FOR EDUCATION AND ASSOCIATION et al., Interveners).
No. 10157.
Circuit Court of Appeals, Sixth Circuit.
Aug. 12, 1946.
Rehearing Denied Sept. 30, 1946.
80 157 F.2d 80
Writ of Certiorari Granted Dec. 9, 1946. See 67 S.Ct. 357.
Ruth Weyand, of Washington, D. C. (David A. Morse, A. Norman Somers, Joseph B. Robison, and Mozart G. Ratner, all of Washington, D. C., on the brief), for petitioner.
Walter M. Nelson, of Detroit, Mich., for Foreman‘s Ass‘n of America.
Paul R. Conaghan, of Chicago, Ill., for Carnegie-Illinois Steel Corporation.
Louis F. Dahling, of Detroit, Mich. (Louis F. Dahling and Bodman, Longley, Bogle, Middleton & Armstrong, all of Detroit, Mich., on the brief), for Packard Motor Car Co.
Rathbone, Perry, Kelley & Drye, оf New York City, for Chrysler Corporation, amicus curiae.
Before SIMONS, ALLEN, and MILLER, Circuit Judges.
ALLEN, Circuit Judge.
This is a petition by the National Labor Relations Board to enforce an order issued in a proceeding charging unfair labor practices against the respondent, the Packard Motor Car Company. On December 6, 1945, the Board determined that Packard‘s “general foremen, foremen, assistant foremen and special assignment men” employed at the company‘s plants in Detroit, Michigan, constitute a unit appropriate for the purposes of collective bargaining within the meaning of section 9(b) of the National Labor Relations Act,
Packard concededly is engaged in commerce. If the privileges of National Labor Relations Act are given to foremen and the unit is appropriate refusal to comply with the order of the Board is admitted, and the order must be upheld.
Packard conducts its principal manufacturing operations in two main plants broken down into approximately 20 divisions, which in turn are subdivided into approximately 300 departments. The total number of employees at the plants involved as of November 30, 1944, was 32,533. The general foremen number 125; the foremen 643, the assistant foremen 273, and the special assignment men 65. All classes of foremen have certain privileges not enjoyed by the rank and filе worker. Their salaries are substantially larger than the wages received by the production force. General foremen, with overtime pay, receive approximately $500 a month; foremen approximately $450 with overtime; assistant foremen approximately $410 with overtime. The special assignment men are paid about the same as general foremen or foremen. These supervisory employees are paid for justifiable absences. They are given a more generous vacation with pay than other workers, and receive separation pay when they leave the company. They are paid for holidays, and permitted to report half an hour late for work without suffering deductions in pay.
The foremen are the front line of management. At Packard the general foreman is in charge of one or more departments, sometimes as high as four departments. In some departments there are no foremen, only assistant foremen, and in such cases the duties of the assistant foremen correspond to those of the foremen. When a general foreman has charge of sevеral departments, he sometimes has an assistant foreman in charge of each department. In general, foreman and assistant foremen have charge of a division of the work of the entire department, or in certain instances they are the direct assistants under the general foreman in connection with the work of the whole department. The special assignment men are trouble shooters who move from division to division in the plant, but they have the qualifications of general foremen and foremen, and also their authority.
At Packard each forеman is responsible for the quantity and quality of production of the work in the area under his supervision. He must check the hourly produc-
“These trends do not mean 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 growing. 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 production 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. On many matters the foreman may only recommend action, but his recommendations must usually be accepted by superiors who know too little about the circumstances of specific cases to reject the foreman‘s recommendation. Hence no matter how well conceived the company‘s production and labor policies may be at the top, thеy are in fact no better than they become at the hands of the foremen who execute them.”
The demand of the foremen that they be allowed to organize in unions has been intensified as a result of the recent world war, and of the enormous expansion in industries such as Packard, not only in the number of production workers, but in the number of supervisory employees and foremen. In Packard there were from 250 to 280 foremen in the years 1938 to 1940. In June, 1944, there were 900 foremen. As a result of this increase, the panel found that the greatest fear of foremen today is that thеy will be laid off or demoted when cutbacks and cancellations of war orders occur, and stated that the interest of foremen in organizing is out of proportion to the nature and gravity of their grievances. As found by the panel, the interest of the supervisory employees in bargaining rights appears to spring from two principal causes: “(1) the desire of foremen to retain their jobs, which they know to be unusually good ones, and to escape demotions when cutbacks come; and (2) the desire of the foremen for freer interchange of viewpoints with higher mаnagement, particularly better opportunities to present such grievances as may arise.”
The Board for a number of years held that foremen and supervisory employees generally do not constitute an appropriate unit for the purpose of collective bargaining, but in June, 1942, in Matter of Union Collieries Coal Co., 41 N.L.R.B. 961, it held that a unit of assistant foremen, fire bosses, weigh bosses and coal inspectors was appropriate for the purposes of collective bargaining, and later, in Matter of Godchaux Sugars, Inc., 44 N.L.R.B. 874, certified a local C.I.O. union as the bargaining agent of working and non-working foremen of the company. However, it excluded a gen-
“The very nature of a foreman‘s duties make him an instrumentality of management in dealing with labor. The duty of supervision with which he is principally charged implies a delegation of authority with respect to the selection, promotion and discharge of the workers in this section. Although the delegation of authority is no longer plenary in modern factories which have a central personnel system, there is no doubt that even the function of advising or recommending action with regard to personnel is sufficient to command respect and instill fear in the minds of subordinates. To hold that the National Labor Relations Act contemplated the representation of supervisory employees by the same organizations which might represent the subordinates would be to view the statute as repudiating the historic prohibition of the common law against fiduciaries serving conflicting interests.”
The Board followed the Maryland Dry Dock decision in Matter of Boeing Aircraft Company, 51 N.L.R.B. 66; Matter of Murray Corp. of America, 51 N.L.R.B. 94, and Matter of General Motors Corp., 51 N.L.R.B. 457. In the instant case, therefore, the Board has reversed its view as to the availability of foremen for collective bargaining under the Act. It stаtes that following the Maryland Dry Dock decision, the Board noted that the potential dangers which concerned the majority of the Board in that case had not materialized in cases where the petitioning foreman is independent and remains so. Finding the Foreman‘s Association of America in this case to be independent, the Board held that to deny the representation would deprive the foremen of a substantial right, and to grant it would not be a disadvantage to industry.
The controlling questions are: (1) Whether the supervisory employees involved herein are entitled to or excluded from the privileges accorded by the National Labor Relations Act and (2) if they are entitled to the privileges of the Act whether the unit established by the Board is appropriate to effectuate the purposes of the Act.
If these foremen fall within the coverage of the statute it is immaterial whether their grievances are or are not great, for they have a right, just as employees of the rank and file, to organize and bargain collectively. This is the principal issue in the case.
The controlling statutes are sections 152(2) and (3) аnd section 157 of Title 29 U. S. C.,
The legislative history does not assist in the solution of the problem. The statute neither specifically includes among employees supervisory officials of any kind nor specifically mentions officials, as does the Railway Labor Act, Title 45 U.S.C., section 151,
The foreman plainly acts in the interest of management. As succinctly stated in Bulletin 66 of the United States Department of Labor, Division of Labor Standards, “The foreman is the operative executive of management * * *, the official contact for workers and shop stewards * * *, the department executive. * * *” This same bulletin states, and under this record the statement is correct, “It goes without saying that the foreman‘s primary responsibility is to protect the interests and rights of management.”
Moreover, the Board and the courts have repeatedly held that the foreman acts for his employer to such an extent that his statements and conduct, if hostile to the union, make the employer liable under an unfair labor charge. International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50; National Labor Relations Board v. Marquette Metal Products Co., 6 Cir., 152 F.2d 964; National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 598, 61 S.Ct. 358, 85 L.Ed. 368. This is true even though the employer has not authorized such statements or conduct. Matter of Tenn-Copper Co., 9 N.L.R.B. 117, 118; Matter of Inland Steel Co., 9 N.L.R.B. 783, 808; Matter of American Steel Scrapper Co., 29 N.L.R.B. 939, 943; Matter of Schult Trailer, Inc., 28 N.L.R.B. 975, 993. In Matter of Emsco Derrick & Equipment Co., 11 N.L.R.B. 79, 87, the Boаrd significantly declared: “* * * the supervisor acts as an agent for the employer, and his acts are necessarily those of the employer unless effectively disavowed.” The same doctrine was emphatically declared in H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309, in which the employer was held responsible although it had not proposed or stimulated the formation of a plant union. The court held the employer responsible for unauthorized activities of supervisory employees, not upon the principle of agency or respondeat superior, but under the broad provisions of the Act condemning such activities as constituting an unfair labor practice.
Likewise the membership of foremen and supervisory employees in an independent or plant union has repeatedly been held by the Board to constitute evidence of employer domination calling for the disestablishment of the independent or plant union. These decisions recognize the close relationship between the foreman and management, and are relied on by Packard as establishing not only that foremen constitute the front line of management, but that they act so directly “in the interest of an employer” that they are excluded from the benefits of section 157, Title 29 U.S.C.,
We think that in view of the decision of the Supreme Court in National Labor Relations Board v. Hearst Publica-tions, Inc., 322 U.S. 111, 64 S.Ct. 851, 860, 88 L.Ed. 1170, and also in view of the holdings of оther courts with reference to the status of the foreman, it cannot be said that he is automatically deprived of the right of collective bargaining to which employees are entitled under section 157, because he has joined the ranks of front-line management. The Supreme Court said in the Hearst case that the term “employee,” “like other provisions, must be understood with reference to the purpose of the Act and the facts involved in the economic relationship.” Considering the definition of employer in section 152(2), “with reference to the рurpose of the Act,” we think it does not include foremen. No statement of any congressional committee or representative appears including foremen in the definition of “employer.” The sweeping character of the definition is explained by the fact that Congress evidently thought the employer must be held responsible for any effort of his supervisors to destroy collective bargaining.
In spite of the numerous decisions penalizing the employer for acts of his foremen, held to constitute unfair labor practice, we find no case in which a fоreman has ever been held to be deprived of the right of organizing with his fellow-foremen. In fact in the one case in which the precise point was raised, National Labor Relations Board v. Skinner & Kennedy Stationery Co., 8 Cir., 113 F.2d 667, the court held that the foreman is an employee for the purpose of pressing his personal needs and demands upon his employer. In Eagle-Picher Mining & Smelting Co. v. National Labor Relations Board, 8 Cir., 119 F.2d 903, affirmed on other grounds, International Union of Mine, Mill and Smelter Workers, Local No. 15, v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335, 65 S.Ct. 1166, 89 L.Ed. 1649, a chemist who was head of the research department was held to be an employee. In National Labor Relations Board v. Star Publishing Co., 9 Cir., 97 F.2d 465, branch managers were held to be employees, while in National Labor Relations Board v. American Potash & Chemical Corp., 9 Cir., 98 F.2d 488, a foreman was reinstated upon the ground that he had been unfairly discharged. Cf. Hazel-Atlas Glass Co. v. National Labor Relations Board, 4 Cir., 127 F.2d 109. In Jones & Laughlin Steel Corp. v. National Labor Relations Board, 6 Cir., 146 F.2d 718, 720, and National Labor Relations Board v. Jones & Laughlin Steel Corp., 6 Cir., 154 F.2d 932, 934, the dual character of the relationship was pointed out with reference to plant guards, it being held that the plant guards are employees for purposes of organization; but because of their public functions, the court denied the petition of the Board to enforce an order permitting the plant guards to be organized by the same union which represented the production employees.
We adhere to the principles stated in Jones & Laughlin Steel Corp. v. National Labor Relations Board, and consistent with that declaration, we conclude that the foreman, although he is part of the front line of management in his obligation to get out the work, to negotiate grievances and to perform the manifold responsibilities heretofore described more fully, in his relationship to his employer with reference to his own wages and conditions of labor is an employee, entitled to the benefits of section 157.
The Board‘s decision that the supervisory employees involved may properly be grouped in one unit is also сorrect. The authority to determine the appropriate unit is primarily vested in the Board.
Since the union involved is independent and neither a part of nor controlled by the union representing the production workers, we also uphold the decision as to the propriety of the exclusive bargaining representative named by the Board. This is a situation diametrically opposite to that presented in Jones & Laughlin Steel Corp. v. National Labor Relations Bоard, supra, where the bargaining agent designated was the identical union which represented the production workers. As found by the panel of the War Labor Board, it is not appropriate for supervisors “who are responsible for discipline, assignment of work, rate adjustments and promotions, who represent the employers in handling grievances of rank and file workers, and who generally represent higher management in dealing with the rank and file workers, to be subject to discipline by a union which is controlled directly or indirectly by the men whom they supervise. The effectiveness of management requires that it have its own uncontrolled agents to represent it in dealing with the rank and file, just as the rank and file are entitled to have their own uncontrolled representatives for dealing with higher management.”
So far as the present designation is concerned, it leaves the foremen uncontrolled agents in dealing with the rank and file, and no reason appears to anticipate that the independence of the Foreman‘s Association of America will in the immediate future be destroyed.
The petition of the Board for an ordеr of enforcement is granted, and a decree will be issued in conformity with this opinion.
SIMONS, Circuit Judge (dissenting).
Undoubtedly in ordinary parlance, and by common law tests foremen are employees. So also are superintendents, department heads, managers, and executive officers. It has been made plain however by the Supreme Court that in interpreting the National Labor Relations Act common law tests are not controlling. So those who in other aspects may be independent contractors are brought within the sweep of the term “employees” by “underlying econоmic facts rather than technically and exclusively by previously established legal classifications.” N.L.R.B. v. Hearst Publications, 322 U.S. 129, 64 S.Ct. 859, 88 L.Ed. 1170. Similarly the responsibility of employers is not narrowly to be restricted by the doctrine of respondeat superior, and in controversies respecting unfair labor practices supervisory employees are held to speak for management, even though unauthorized or expressly forbidden so to do. International Ass‘n of Machinists v. N.L.R.B., 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50; Heinz v. N.L.R.B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368. This principle we have dutifully applied. Consumers Power Co. v. N.L.R.B., 6 Cir., 113 F.2d 38; N.L.R.B. v. Thompson Products, 6 Cir., 130 F.2d 363; N.L.R.B. v. Mt. Clemens Pottery Co., 6 Cir., 147 F.2d 262.
As disclosed in the majority opinion, respondent‘s foremen are a privileged class, perform no manual work, and constitute the front line of management. Their recommendations concerning pay, transfer, lay-off, discharge, demotion, and discipline are usually followed. It has been held that if foremen join or encourage plant unions, such unions are employer dominated, and so company unions. International Ass‘n of Machinists v. N.L.R.B., supra. If foremen seek information as to union organization plans it is employer espionage condemned by the Act. N.L.R.B. v. Cleveland-Cliffs Co., 6 Cir., 133 F.2d 295. Foremen are employers not only by reason of their duties and responsibilities, but by the inescapable implication of
Up to the present case, the Labor Board had held in a long series of decisions that foremen do not constitute an available unit for collective bargaining. The basis for present departure from earlier decisions is
PER CURIAM.
The petition for rehearing is denied.
SIMONS, Circuit Judge (dissenting).
Review of the legislative history of the Wagner Labor Act, the labor literature of the period preceding and following its enactment, and the many decisions interpreting and applying it, leads inescapably to the following conclusions: (1) That the dominant purpose in the minds of its proponents was the fashioning of mechanism by which “laborers,” “workers” and “production men” in the great mass industries, until then impotent, might achieve bargaining power on a parity with the economic power which the development of such industries had lodged in the hands of the employing class;1 (2) that prior to and for a substantial period following the enactment, supervisory employees were not identified with the labor movement, were for the most part without labor consciousness, generally considered themselves allied with the employing class and occupying a status above standards needing unionization;2 and (3) that orders of the Labor Board imposing discipline upon employers for violations of the Act stem almost invariably from discrimination, threats, espionage and domination by such supervisory employees.3
Wherefore, I adhere to the views expressed in the dissent to the decision in the above cause, always keeping in mind that the Labor Act must be construed in the light of the social and economic conditions that brought about its passage, and I would grant the petition for rehearing.