National Labor Rel. Bd. v. Packard Motor Car Co.

• Decision Date: 09 December 1946
• Docket Number: No. 10157.,10157.
• Citation: 157 F.2d 80
• Parties: NATIONAL LABOR RELATIONS BOARD v. PACKARD MOTOR CAR CO. AND (FOREMAN'S LEAGUE FOR EDUCATION AND ASSOCIATION et al., Interveners).
• Court: U.S. Court of Appeals — Sixth Circuit

157 F.2d 80 (1946)

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.

August 12, 1946.

Rehearing Denied September 30, 1946.

Writ of Certiorari Granted December 9, 1946.

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. Harry P. Jeffrey, of Dayton, Ohio, for Foreman's League for Education and Association and National Association of Foremen, intervening parties respondent.

Rathbone, Perry, Kelley & Drye, of New York City, for Chrysler Corporation, amicus curiae.

Before SIMONS, ALLEN, and MILLER, Circuit Judges.

Writ of Certiorari Granted December 9, 1946. See 67 S.Ct. 357.

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, 29 U.S.C.A. § 159(b). Pursuant to this order an election was held in which a majority voted that they wished to be represented by the Foreman's Association of America, one of the intervenors here. Packard refused to negotiate with the Foreman's Association, upon the ground that foremen are not employees under the Act, and are therefore not entitled to its privileges. At the hearing of the unfair labor case the Board decided that foremen, while they represent the employer for certain purposes, are employees in their relationship to the company and are entitled to the right of collective bargaining within the terms of the statute. It further found that the unit theretofore designated, including the four levels of supervisory employees — general foremen, foremen, assistant foremen and special assignment men — was an appropriate unit. The usual cease and desist order was issued, and it is this order which the Board asks this court to enforce.

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 file 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 several 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 foreman is responsible for the quantity and quality of production of the work in the area under his supervision. He must check the hourly production report and maintain production in his department. He must see that any breakdown is remedied, and that repairs are made. He has to instruct the foremen or assistant foremen under him and see to it that they properly execute their duties. None of the men in the four classes involved here performs any manual work, each of them being principally responsible for the maintenance of quality and quantity of production in the area under his supervision. The general foreman makes recommendations to the superintendent as to the rates of pay, transfer, rehire, lay-off, discharge and discipline of the foremen. These recommendations are usually followed. The foremen and assistant foremen likewise make recommendations which are usually followed, concerning the pay, discharge, demotion, discipline, etc., of the workers under them. All classes of foremen make suggestions for the improvement of production, and these suggestions are very largely adopted. In an exhaustive report filed January 19, 1945, made by a panel of distinguished economists established by the National War Labor Board to deal with disputes in major automobile and shipping industries involving supervisors, including that between Packard and certain of its foremen, the panel recognized that for a long time the responsibilities and authority of the foreman had been undergoing a slow change, resulting in a drop in his authority and in his responsibility for making policies, and a rise in the foreman's responsibility for executing policies. However, the panel concluded:

"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, they 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 they 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 view-points with higher management, 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 general foreman. In Matter of Stanley Company of America, 45 N.L.R.B. 625, on November 17, 1942, it found that the unit of managers, assistant managers, utilitarians and treasurers in the Stanley Company's chain of theaters was not an appropriate unit. At the same time it dismissed a petition of an aircraft union which sought to represent a unit consisting of general foremen, foremen and assistant foremen of the Boeing Aircrafts Company, 45 N.L.R.B. 630. Shortly after the decision in the Union Collieries and Godchaux Sugars cases a bill was introduced in Congr...