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be an appropriate bargaining unit despite the Company's contention that the men involved performed confidential and disciplinary duties and were therefore instruments of management. In Matter of General Motors Corporation' we held that shift operating engineers with supervisory authority and responsibility for safe operation of the powerhouse equipment constituted an appropriate bargaining unit, although opposed by the employer on the ground that they were supervisory employees performing duties closely allied with management.
While the right of supervisory employees to be represented for the purposes of collective bargaining cannot be doubted as a general proposition, a further question arises as to whether the unit contended for is an appropriate one. The unit urged here consists only of supervisory employees, who, with the exception of the night bosses, are employed in supervisory positions of minor importance. None participates in determining the policy of the Company or has power to hire or discharge. They have very slight disciplinary power over employees under their supervision and in some cases no disciplinary power. All are paid on a daily basis. Their powers, duties, and interests are such that all of these employees, except the night bosses, have that community of interest which is prerequisite to inclusion within a single unit.
The night bosses are in a different category, however, having supervisory authority over all employees including the other employees in the proposed unit. In view of their duty to supervise the work of assistant foremen, fire bosses, weigh bosses, and coal inspectors, we do not deem appropriate the inclusion of night bosses within the unit. The Union itself has excluded from the proposed unit the mine foremen whose duties are comparable to those of the night bosses. We shall accordingly exclude the night bosses from the unit.
The Company contends, however, that if supervisory employees may bargain through labor organizations the appropriate unit should include all similar supervisory employees employed by members of the Western Pennsylvania Coal Op erators Association, of which the Company is a member.' We have frequently held, that the employees of several employers should be joined in a single unit when the history of collective bargaining in a particular industry showed bargaining on such basis to be the established method of negotiation. No showing of such bargaining history for supervisory employees, however, was made by the Company. On the contrary, the record shows, and we find, that while collective bargaining on the multiple employer basis became a well established and accepted method of bargaining in the industry for production employees, the few instances of collective bargaining in behalf of supervisory employees, has been conducted on a single-employer unit basis. Nor has the Union organized the supervisory employees of all members of the Western Pennsylvania Coal Operators Association.
Under all the circumstances, including the extent of employee self-organization among supervisory employees of members of the Association, we conclude that a bargaining unit limited to certain supervisory employees of the Company, is appropriate.
Matter of General Motors Corporation and American Power Association, Independent, 36 N. L. R. B. 439.
8 The Western Pennsylvania Coal Operators Association is an association of coal operators in nine counties of Western Pennsylvania. It was formed in 1933 "to secure a prompt and equitable adjustment of questions that may arise between the members of the Association and their employees or the representatives of such employees relating to wage agreements and working conditions." Since its formation, the Association has entered into a series of collective bargaining agreements covering wages and other conditions of employment of production employees of all the members of the Association, including the production employees of the three mines of the Company, involved in this case. It is asserted, that under the articles of association, signed by the Company, the Association is vested with exclusive authority to enter into any and all agreements covering wages and working conditions of employees of its members, and that an individual operator no longer has any power in these matters.
See Fourth Annual Report, p. 93. 10 The Appalachian Agreement of June 19, 1941. to which Western Pennsylvania Coal Operators Association was party, is limited in its operation to production employees (miners) in the mines and exempts from its operation supervisory employees. Section 27 of that Agreement provides that "the term 'mine worker as used in this Agreement shall not include mine foremen, assistant mine foremen, fire bosses, or bosses in charge of any claims of labor inside or outside of the mine, or coal inspectors or weigh bosses The same provision was also inserted into the Supplementary Agreement of July 16, 1941, between Districts 3, 4, and 5 of the U. M. W. A. and the Association.
11 In March 1941 the Union negotiated an agreement with Ford Collieries, a member of the Association, covering wages and other conditions of employment of supervisory employees of that Company. It also negotiated an oral agreement covering supervisory employees with Hillman Coal Company, Allegheny County, Pennsylvania, and has obtained a substantial increase in wages for the supervisory employees of BRP Coal Company.
9. The Company also contends that if the supervisory employees concerned are "employees" within the meaning of the Act, by virtue of the Appalachian Agreement and its supplements these supervisory employees should be represented by the United Mine Workers, party to the Appalachian Agreement. Although notified of the proceedings in this case, the United Mine Workers did not appear at the hearing before the Trial Examiner. The United Mine Workers, so far as the record shows, has never bargained for supervisory employees and the employees here involved are specifically excluded from the Appalachian Agreement and its supplements. Accordingly, we find the Company's contention to be without merit.
We find that the assistant foremen, fire bosses, weigh bosses, and coal inspectors, employed in the three mines of the Company, excluding foremen and night bosses, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act.
VI. The determination of representatives We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of Direction of Election herein, subject to the limitations and additions set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the representation of employees of Union Collieries Coal Company, Oakmont, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
2. The assistant foremen, fire bosses, weigh bosses, and coal inspectors employed in the three mines of the Company, excluding mine foremen and night bosses, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 1
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 8, of National Labor Relations Board Rules and RegulationsSeries 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Union Collieries Coal Company, Oakmont, Pennsylvania, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Sixth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the assistant foremen, fire bosses, weigh bosses, and coal inspectors employed at the three mines of the Union Collieries Coal Company, Oakmont, Pennsylvania, 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 in the active military service or training of the United States, or temporarily laid off, but excluding foremen and night bosses, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Mine Officials' Union of America (Ind.) for the purposes of collective bargaining Signed at Washington, D. C., this day of June 1942.
HARRY A. MILLIS, Chairman,
WM. M. LEISERSON, Member, [SEAL]
NATIONAL LABOR RELATIONS BOARD.
12 See footnote 10, supra.
Mr. GERALD D. REILLY, dissenting :
The major issue raised by this case presents the Board with difficulties which I do not feel were present in the cases upon which the majority relies. It is true that, technically speaking, a supervisory official in a factory or mine is an employee of the corporation, since he works for hire, although he may also, within the broad definition of Section 2 (2) of the Act, be an "employer" in his relationship to subordinate employees. It is also true, as was pointed out in the Circuit Court of App als decision cited by the majority,' that such persons act in a dual capacity, and “there is no inconsistency in these provisions when the facts are taken into consideration.” Nevertheless, despite the broad definition of the term "employee" in the Act, there must be an implied limitation in its scope, for the statute must be construed against the background of an industrial society in which the great majority of business enterprises are conducted in the corporate form. A literal interpretation of the statute would mean that even the president, vice president, and treasurer of a corporation have a right to bargain collectively, since they are also employees. Yet very few persons would contend for such an absurd construction, and it is unlikely that the courts would be hospitable to such an argument." In ordinary representation cases where supervisory employees have been involved, the Board, recognizing the importance of preserving the dividing line at the conference table, has tended to exclude foremen and other supervisory employees from a production and maintenance unit. With respect to the maritime industry in which, as in the instant case, petitioners have sought to represent a group of employees all of whom were supervisory, the Board has attempted to solve the dilemma by establishing separate units composed of masters, mates, and pilots.
The majority opinion treats this case as if it were controlled by the merchant marine cases in which separate bargaining units had been established for, licensed officers. Nevertheless, I believe there is a genuine distinction between this case and the maritime cases. Judicial notice may be taken of the fact that labor relations in the bituminous coal industry have for many years been regulated by collective agreements negotiated between associations of mine operators and the United Mine 'Workers of America. These agreements cover all miners, irrespective of craft nomenclature, except those holding supervisory positions. In other words, the situation is entirely different from that which exists in the maritime industry where unionization of the licensed deck personnel has developed quite apart from the development of collective bargaining for the forecastle or the engine room.
This case does not turn on a question of law, but upon a findng of a “unit appropriate for collective bargaining" within the meaning of Section 9 (b). Consequently, in our appraisal of factors entering into the conception of the word "appropriate,” it is important to consider the possible impact of this decision upon the general policy of the Act.
At the invitation of the Board, a representative of the United Mine Workers appeared at the oral argument. He pointed out that the employees who are the subject of this petition were excluded from the scope of the agreement discussed at the last Appalachian conference of operators and miners because of a general understanding that they were management representatives. He stated, however, that if the Board should decide that the supervisory employees who are the subject of this petition constituted a unit appropriate for collective bargaining, the Mine Workers' union would in all probability seek to represent such persons when conferences were initiated for the purpose of negotiating new agreements. Assuming that this prediction is correct, this would mean that the Board would be faced with a situation in some mines in which the union which already represents the production and maintenance employees would also
13 See footnote 3 of the majority opinion.
15 For a recent decision holding that the Board has no authority to lumn unlicensed seamen in the same unit with masters and mates see N. L. R. B. v. Delaware-New Jersey Ferry Co., decided April 29, 1942 (C. C. A. 3), enf'g as mod. Matter of Delaware- Vew Jersey Ferry Company and United Marine Division, Local No. 333, affiliated with the A. F. L. and the I. L. A., 30 N. L. R. B., No. 120.
16 Those decisions do answer one contention made by counsel for the Company, viz, that the employees included in the proposed unit are not employees within the meaning of the Act, since under the mining laws of the State of Pennsylvania some of them have certain statutory duties to perform, irrespective of the instructions or the desires of the mining companies. This argument seems to overlook the existence of similar authority vested in masters and pilots of ships under the safety-at-sea statutes and the general admiralty law.
be representing supervisory officials. While it may be argued that any conflict of interest can be met by establishing separate bargaining units, such a separation is more theoretical than real where both units have the same representative.
Of more serious concern, however, is the prospect of organizational rivalry among the production workers involving supervisory officials, especially those situations in which there will be competing unions in the same mine. Under such circumstances, it is a well-established doctrine of this Board that the employer must remain neutral, for to engage in acts of assistance to one union as against another is an unfair labor practice. A corollary of this principle is that supervisory employees must also maintain a laissez-faire attitude as their actions are imputed to the employer. Yet if such supervisors under the mechanisms of this Act are permitted to promote and encourage the interests of the union which is their representatve, it would appear that their conduct might well have a coercive effect impairing the freedom of choice among their subordinates which the Act guarantees. It would hardly be consistent, however, to apply the usual standards to this situation in view of the assumptions which underlie the granting of the petition in this case.
While it may be conceded that the position of the employees who are the subject of this petition would be benefited by effectuating their right to collective bargaining under the provisions of the Act, it seems to me that this is outweighed by its possible impingement upon the similar right of the greater number. Weighing all these considerations, I am therefore of the opinion that the unit proposed here is inappropriate and that the petition should be dismissed. Signed at Washington, D. C., this 15th day of June 1942.
GERARD D. REILLY, Member. The CHAIRMAN (continuing). The first witness this morning is Mr. J. G. Luhrsen, executive secretary of the Railway Labor Executives' Association, Washington, D. C.
Mr. Luhrsen, will you tell the committee what your connection is and make us a statement on this legislation; tell us what you think about it, and proceed as you may desire, sir.
STATEMENT OF J. G. LUHRSEN, EXECUTIVE SECRETARY-TREAS
URER, RAILWAY LABOR EXECUTIVES' ASSOCIATION, WASHINGTON, D. C.
Mr. LUHRSEN. My name is J. G. Luhrsen; I am executive secretary of the Railway Labor Executives' Association, with headquarters at 10 Independence Avenue SW., Washington.
I might say in the beginning that the names of the organizations are listed on a letterhead which I am passing over to the reporter so he may incorporate that in the record, if that is agreeable, representing approximately 1,250,000 railroad employees.
The CHAIRMAN. All right, sir.
RAILWAY LABOR EXECUTIVES' ASSOCIATION
T. C. Cashen, chairman, 3 Linwood Avenue, Buffalo, N. Y.
Washington, D. C.
Order of Railroad Telegraphers Order of Railway Conductors of Amer- American Train Dispatchers' Associa ica
Railway Employes' Department, Amer- Brotherhood of Railway and Steamship ican Federation of Labor
Clerks, Freight Handlers, Express International Association of Machinists and Station Employes International Brotherhood of Boiler- Brotherhood of Maintenance of Way
makers, Iron Ship Builders, and Help Employes ers of America
Brotherhood of Railroad Signalmen of International Brotherhood of Black America
smiths, Drop Forgers, and Helpers National Organization Masters, Mates, Sheet Metal Workers' International As and Pilots of America sociation
National Marine Engineers' Beneficial International Brotherhood of Electrical Association Workers
International Longshoremen's AssociaBrotherhood Railway Carmen of Amer tion
ica International Brotherhood of Firemen
Mr. LUHRSEN. At the outset, I will state that the association, as such, is opposed to H. R. 2239, and I will explain some of the reasons why we think it should not be enacted, as I go along in my argument.
First of all, if it will be agreeable to you, Mr. Chairman and gentlemen of the committee, I feel I should explain to you something about the independent supervisory organization which I have had the pleasure to represent for the last 27 years as president and which is one of the organizations included in the Railway Labor Executives' Association, and what the backgrounds were that necessitated, as we believed it, the organization of the supervisory officials. I will direct my first argument to that experience as throwing some enlightenment on it so that you will realize there was some background of the necessity for these men to become organized in order to stay on a level with other organized employees—the big unions. I will put it that way.
In 1917 we organized the American Train Dispatchers' Association in the City of Spokane, Wash., where I then resided and where I was working for the Great Northern Railroad. Prior to our becoming organized, I think I can give you just a few reasons which will indicate to you that there was a necessity for organization.
We had had the 8-hour day for train dispatchers applied since 1865. It was voluntarily established by railroad management without organization and without legislation, recognizing the importance and the responsibilities of that position. However, prior to becoming organized, if, for instance, I was off sick a day or 2 days I would have such days pay deducted; the other two men would work 12 hours each to cover the 24-hour period, instead of an 8-hour day for three shifts. At the end of the month they would be paid their ordinary salary, of approximately $100 a month. I am going back quite a long ways, Congressman, because I have been 51 years in the railroad service, and most of it as a train dispatcher. When I go back that far and speak about $100 a month and then have train dispatchers working 12 hours a day and there was no hours-of-service law then prohibiting management from doing that you will realize that was an injustice.
And then we had conditions after we were organized, or during Federal control, where we got a lot of regulations and orders issued by Director General Mr. McAdoo which, however, were twisted and misinterpreted and they did not give us the benefit of some of those orders.
For example, I had one case of a large eastern railroad, where the various agencies set up by Mr. McAdoo—and they were all rail