The Foreman in Industrial Relations 9780231893947

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STUDIES IN HISTORY, ECONOMICS AND PUBLIC L A W Edited by the FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY

NUMBER

542

THE FOREMAN IN INDUSTRIAL RELATIONS vr

ROBERT DAVID LEITER

T H E FOREMAN IN INDUSTRIAL RELATIONS

BY

ROBERT DAVID LEITER

NEW

YORK

COLUMBIA UNIVERSITY

1948

PRESS

D.

COPYRIGHT, 1 9 4 8 BT COLUMBIA UNINERSITY PBCSS

M I N T O IN THE UNITED STATES 0 F AMEBICA

Published in Grcut Britain and India by GEOFFREY CUMBERLECE

OXFORD UNIVERSITY PRESS London and Bombay

TO

ARTHUR FRANK BURNS A

MODEL SCHOLAR

PREFACE ALTHOUGH the Labor Management Relations Act of 1947 attempts to mitigate the industrial strife that has resulted from the unionization of foremen, by taking away from them the protection which they were granted previously under the law, it may be anticipated that this objective will not be achieved. Foremen must now depend only upon their own economic strength to secure recognition from the employer and compel him to bargain collectively with them. The foremen no longer have the general guarantees which are given to the ordinary production workers. If the strikes of unionized foremen are unsuccessful, foremen may be expected to link themselves with unions of rank and file employees, from whom they would draw support; and some evidence is available already that they are doing so. This book was written before the passage of the new labor law, though that such a law might be passed was constantly kept in mind by the author. The author believed then, and believes now, that the issue will increase in importance in the coming years. Many foremen have experienced the benefits of unions and will desire to maintain any advantages they have secured. T h e removal of legal protection from the organization of foremen will place them in the same category in which ordinary workers were prior to the passage of the National Labor Relations Act. It is still felt that the solution which will most increase efficiency and lessen industrial strife is governmental protection for independent unions of foremen. T h o u g h some of the material is related directly to the National Labor Relations Act, it is to be remembered that under the new statute the employer is still responsible for the actions of his foremen. In addition, many cases will arise in which foremen must be protected from discrimination when they 7

8

PREFACE

refuse to aid the employer in a policy of discrimination against the ordinary workers. There appears to be only a slight possibility that the courts will throw out the provisions which eliminate foremen from the coverage of the law, but it is more likely that these provisions will be repealed by Congress. In any case, the adjustment will not be smooth, especially where no historical pattern of unionization has emerged. It is indeed a pleasure to acknowledge the advice and time which have been given by many persons. I wish to thank Professor Leo Wolman for his advice, guidance, and encouragement throughout the long period during which this book was written, and prior thereto. Professor Paul Brissenden spent many hours in going over the original manuscript and pointed out numerous desirable changes. Professor Carter Goodrich read the manuscript and made several suggestions. Professor Herbert Northrup made many valuable suggestions during the early stages of the project and read part of the manuscript. Professor Paul Hays also read part of the manuscript. I desire to express appreciation to Professors Arthur Frank Burns, R. Parker Eastwood, Joseph Dorfman, and Frederick Mills, and to numerous representatives of management and labor unions for much time and patience. I also desire to thank Mrs. Gertrude Stewart, of Columbia University, whose help has been greater than she is willing to admit. R. D. L. COLLEGE OF T H E C I T Y OF N E W NEW YORK, NEW A U G U S T 14,

1947

YORK

YORK

TABLE OF CONTENTS PACE PREFACE

7

P A R T I.—The Problem of the Status of Foremen CHAPTER

I

T h e Dual Status of Foremen

15

A . Introduction

15

B. Outline of the Argument

19

C. Conclusions

28 CHAPTER

II

W h a t Is a Foreman?

32

A . T h e Changing Position of Foremen in Industry

32

B. T h e Definition of Foreman

38

C. T h e Meaning of " Foreman " under the National Labor

Re-

lations A c t

41

P A R T II.—The Historical Evolution of the Unionization of Foremen C H A P T E R III Industries in W h i c h Foremen L o n g H a v e Been Union Members

49

A . Printing

51

B. Maritime

62

C. Others—Building, Metal Trades, Government, Railroads

79

D. Foremen's Clubs

81 CHAPTER

IV

Recently Organized Unions of Foremen

84

A . United Foremen and Supervisors ( C I O )

84

B. Foreman's Association of America ( I N D )

88

C. United Clerical, Technical and Supervisory Employees Union, District 50, United Mine W o r k e r s ( A F L ) D. Others

95 103

9

IO

TABLE

OF

CONTENTS

P A R T III.—The Impact of Legislation on the Status of Foremen CHAPTER The

National Labor Relations Actions of Foremen

Act:

V

Employer

Responsibility

for 107

A . Interference, Restraint, and Coercion by Foremen W h o A r e Not Union Members

107

B. Interference by Foremen W h o A r e Union Members or Eligible to Membership

112

CHAPTER

VI

T h e National Labor Relations A c t : Employer Discrimination against Foremen

116

A . Foremen Who A r e Not Members of a Union

119

B. Foremen W h o A r e Members of a Rank and File Union

121

C. Foremen W h o A r e Members of a Union of Supervisors

124

CHAPTER

VII

The National Labor Relations A c t : Refusal to Bargain Collectively with Foremen

126

A . Groups Excluded from Protection of the Act

126

B. Foremen as Members of a Rank and File Unit

127

C. Foremen as Members of an Independent or Affiliated Supervisory Union

131

D. Foremen as Members of a Separate Unit Which Is Affiliated with a Rank and File Union

138

E. Appropriate Unit

141

F. Differences among Industries

143

CHAPTER Foremen under State Laws

VIII 144

A . Leading Characteristics

144

B. New York

145

C. Massachusetts

154

D. Pennsylvania

156

E. Wisconsin

160

F. Alabama

162

G. Other States and Territories

164

T A B L E

OF

C O N T E N T S

II

C H A P T E R IX The Federal Government and Foremen Labor Relations Act) A. Railway Labor Act

(Excluding the National 166 166

B. Fair Labor Standards Act

176

C. National War Labor Board

181

D. Proposed Legislation

189

BIBLIOGRAPHY

193

INDEX

197

PART I T H E PROBLEM OF T H E STATUS OF FOREMEN

CHAPTER I THE DUAL STATUS OF FOREMEN A.

INTRODUCTION

TECHNOLOGICAL progress and the growth of industry have brought on many changes and have greatly expanded the scope of industrial relations. Management has acquired new and difficult responsibilities. But simultaneously, labor unions have grown. T h e employer who had been accustomed to make his own decisions, without consulting anyone, was forced slowly to the conclusion that the power of the union made it advisable to meet its demands in many matters. A n d unions gradually have asserted their interests in a larger number of industrial problems. Sometimes labor legislation has forced management and labor into a new orientation. Recent legislation has strengthened the position of labor, while restricting or eliminating some of the privileges formerly exercised by employers. T h o u g h both groups may find many areas in the processes of industrial operations where their objectives are identical, the clash of interests between them must remain with respect to certain problems in a system of capitalistic enterprise. One of these problems, which has a long history, has been the role of the foreman in labor relations. The employers consistently have maintained that the foreman represents them. The attitude of workers and foremen themselves has varied. But the problem of the status of foremen has increased in gravity during the last ten years because of federal legislation. The status of foremen under the National Labor Relations A c t 1 depends upon the meaning of the term " employee " , which is defined by the Act. Congress has, in the last t w o decades, passed various kinds of labor legislation and almost all of these laws contain definitions of the word " employee ". I 4 9 Stat. 449 (1935)-

IS

l6

THE

FOREMAN

IN

INDUSTRIAL

RELATIONS

But even a brief inspection will show that the definitions vary in many respects. The Social Security Act is very specific.2 It says: " The term ' employee' includes an officer of a corporation." The Railway Labor Act, 3 however, does not go as far. But it does state that a subordinate official is to be considered an employee. The lack of clarity in the National Labor Relations Act has resulted in complications.4 It is quite clear, that in defining " employer ", the foreman is included.5 But whether the foreman is included in the term " employee " and hence is within coverage of the Act is subject to interpretation.8 There is nothing in the committee reports or in the debates in the House and Senate which would indicate that this specific problem was ever considered by the Congress.7 Congress, however, passed the law in pursuance of a broad policy, and an examination of the purpose of the law will aid in deciding whether foremen fall within the scope of the National Labor Relations Board's authority in the matter of the determination of representation. For unless the language of a statute leaves no alternative, it should not be construed in a manner that would defeat its purpose.8 There can be no valid objection to the proposition that an individual can be both an employer and an employee in the same firm. Just as a merchant buys and sells the same com2 4 9 Stat. 620, 647 (1935)3 4 8 Stat. 1185, 1186 (1934).

This law is discussed below.

4 A discussion of the treatment of the word " employee " by Congress is found in U. S. v. American Trucking Associations, Inc., 310 U. S. 534, 545 (1940). 5 " Sec. 2. (2) The term 'employer' includes any person acting in the interest of an employer, directly or i n d i r e c t l y . . . " 6 " S e c . 2. (3) The term 'employee' shall include any e m p l o y e e . . . " 7 See Maryland Drydock Co., 49 N. L. R. B. 733, 738 (1943)8 Haggar Co. v. Helvering, Commissioner of Internal Revenue, 308 U. S. 389, 395 (1940).

THE

DUAL

STATUS

OF

FOREMEN

If

modity and a worker produces and consumes, so a foreman can in certain aspects of his work be an employer and in others an employee. The question whether Congress had, indirectly, desired to give the supervisor a dual status will be considered in due course, but the courts frequently have said that there is nothing wrong legally with this concept.9 The United States Supreme Court has given the Board wide latitude in defining the term " employee " . In the Hearst Publications case, which involved newsboys and the companies for whom they were employed, this court said: . . . the broad language of the Act's definitions, which in terms reject conventional limitations on such conceptions as " employee," " employer," and " labor dispute," leaves no doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications. . . . Resolving that question, [who is an employee under the Act] like determining whether unfair labor practices have been committed, " belongs to the usual administrative routine " of the Board. 10 Specifically, with regard to foremen, various circuit courts of appeals have ruled that they are both employers and employees. 11 In regard to the men under them, they are employers, while in dealing with their superiors with reference to wages and conditions of labor, they are employees. The United States Supreme Court handed down an opinion on March 10, 1947, in which it held that foremen are " employ9 That the foreman acts as U. S. Supreme Court in N. L. R. B., 311 U. S. 72, 80 by the same court in Packard 0947).

an employer was established definitely by the International Association of Machinists v. (1940) ; that he is an employee was etablished Motor Car Co. v. N. L. R. B., 330 U. S. 485

10 N. L. R. B. v. Hearst Publications, Inc., 322 U. S. 111, 129, 130 (1944). 11 N. L. R. B. v. Packard Motor Car Co., 157 F. 2d 80, 85 CCA6 1946.

18

THE

FOREMAN

IN

INDUSTRIAL

RELATIONS

e e s " within the meaning of the Act. T h i s case, however, involved foremen who are members of an independent union of supervisors. The court said: The point that these foremen are employees both in the most technical sense at common law as well as in common acceptance of the term, is too obvious to be labored . . . The context of the Act, we think, leaves no room for a construction of this section [Section 2 ( 2 ) ] to deny the organizational privilege to employees because they act in the interest of an employer. Every employee, from the very fact of employment in the master's business, is required to act in his interest.12 The purposes of the Wagner Act are set forth in the law itself. 13 Congress emphasizes the desirability of increasing the bargaining power of employees, reducing .the impediments to the flow of commerce, curtailing the number of strikes, and stimulating the use of the procedures of collective bargaining. In an early and decisive test, the U . S. Supreme Court had to rule on the constitutionality of this law. The Jones & Laughlin decision 14 reiterated what the court had said many times before, that employees have the privilege of organizing, in order to safeguard their proper interests. L o n g before this decision the Supreme Court had recognized the common law privilege of workmen to collective action, 15 though the employer had the privilege to prevent the organization of the workers and to refuse to bargain collectively. And foremen would have the same privilege under the common law to form associations for collective bargaining. The privilege to organize cannot be taken away from workers, and a law preventing foremen from exercising that privilege could not be sustained in the courts. 12 Packard Motor Car Co. v. N. L. R. B.( 330 U. S. 485, 488. 13 Section 1. 14 N. L. R. B. v. Jones & Laughlin, 301 U. S., 1, 33 (1937). 15 Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439 (1911).

THE

DUAL

STATUS

B . O U T L I N E OF T H E

OF

FOREMEN

19

ARGUMENT

The determination of the nature of the controversy regarding the unionization of foremen under the aegis of the N.L.R.A. can best be examined by suggesting the arguments and views which have been advanced by those interested in the movement to organize such employees. It must be understood, however, that some of these arguments are not as general or as potent as others, but are usually presented only as subsidiary. 1. Management has argued that when it is admitted that foremen act as employers and the company is responsible for their actions in matters of labor relations, they are in reality agents of management. And the rules of agency and the required fidelity necessary make it impossible for the individuals involved to have a dual status. The U. S. Supreme Court has said: The general rule stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self-interest and integrity.16 Numerous additional decisions have emphasized the view that the agent has definite responsibilities and allegiances which he owes to his principal. But does the necessity of such loyalty exclude the possibility of the foreman bargaining for changes in his conditions of employment ? The courts have not held that foremen are agents of the employer, when dealing with him in regard to their terms and conditions of employment. Industry does not oppose bargaining by foremen. It points out that it desires bargaining on an individual basis. It stresses that the foremen do not need collective bargaining because they have adequate redress of grievances in individual bargaining. 17 It has not proved that the foremen subject themselves 16 Michoud v. Girod, 45 U. S. 503, 554 (1846). This case was not a labor case. 17 S i e Millis' dissent in Maryland Drydock Co., 49 N. L. R. B. 733, 746 (1943)-

20

THE

FOREMAN

IN

INDUSTRIAL

RELATIONS

to influences which conflict with their duty to the employer if the employer must deal with the foremen's collective bargaining agent who is essentially independent. F o r a supervisor can be loyal or disloyal whether he bargains for himself or whether, under collective bargaining, a representative bargains for him. 2. It has been argued that foremen are not employees. Since Congress refers to " workers " and " wage earners " in one part of the Act, 1 8 the claim is made that supervisory personnel were meant to be excluded. This argument does not have merit in the light of the broad generic meaning given to these terms in the context, and has been rejected. 19 Though the findings and policy statement deal with those terms, it does not appear convincing that this is evidence that supervisors were meant to be excluded. 3. N o majority decision of the National Labor Relations Board ever stated that foremen and supervisors are not employees within the meaning of the Act. Though it has often been suggested that the Board did so declare in the Maryland Drydock decision, an examination of the record will show that Members Reilly and Houston who were responsible for the majority opinion, held them to be employees, but emphasized that the mere determination that one is an employee does not warrant the conclusion that a bargaining unit is appropriate. It is quite true that minority opinions have stated that foremen are not employees. 20 One of the curious results of the Maryland Drydock decision was that an arbitrator ordered back pay for a group of employees at a plant who were rendered idle by a foremen's strike because the N . L . R . B . was considering foremen to constitute part of management at the time of the strike. The union requested that production workers who could not work because 18 Section 1. 19 Soss Mfg. Co., 56 N. L . R . B . 348, 349 ( 1 9 4 4 ) . 20 Union Collieries Coal Co., 44 N. L . R . B . 165, 170 ( 1 9 4 2 ) ; Corp. of America, 45 N . L . R . B . 625, 629 ( 1 9 4 2 ) .

Stanley

THE

DUAL

STATUS

OF

FOREMEN

21

of the foremen's strike, in January 1945, be paid for the time lost. The company contended that lost time is paid for only under normal plant operating conditions, and that the foremen's strike was an abnormal condition; also that foremen were not acting as if they constituted part of management. But the company was overruled. 21 The common belief that the problem of foreman unionization did not arise before the N . L . R . B . until 1942, will be shown to be inaccurate. A n y statement which is made to that effect must be qualified by the consideration that it refers to enterprises in the mass production industries. When such a case did arise in these industries, the petitioning organization was discouraged by the regional director from pressing the case and the petition was dismissed without a hearing. The union did not avail itself of its legal right to appeal the matter to Washington. 22 An attempt to show that certain groups, not specifically excluded from the category of employee under the Act, are not entitled to its protection; and thus demonstrate that groups can be excluded by Board action, is not well founded. Frequently the question is raised as to whether the vice presidents of a corporation may organize for the purpose of collective bargaining. Some individuals have denied that these men are covered by the N . L . R . A . 2 3 But others have found it equally logical to assume that vice presidents can form a bargaining unit, though not necessarily under the protection of the Act. 24 It is not improper for an agent, who is representing the interests of the vice presidents of a corporation to bargain for them. 4. The unionization of foremen has a long history in certain industries, but a short one in others. The way in which they 21 Arbitration between B. F. Goodrich Co. and United Rubber Workers of America, Local 5 (C. I. O . ) , 1945, 17 L R R Man. 2680. 22 See G. D. Reilly, " Foreman Organization ", Conference ment Record, January 1945, p. 4.

Board

Manage-

23 Union Collieries Coal Co., 41 N. L. R. B. 961, 970 (1942). 24 R. L. Greenman, The p. 115.

Worker,

the Foreman

and the Wagner

Act,

22

THE

FOREMAN

IN

INDUSTRIAL

RELATIONS

have organized has varied. They may constitute part of the union of production workers, be affiliated with production workers, or remain independent. The implications of these types of unionization differ markedly from each other. While it is not usually desirable from the point of view of the efficiency of production to subject the foreman to the control of a union of the rank and file employees, there is no legal, or even reasonable, bar to his associating with his fellows if that is the desire of the group. The problem has been posed by an industrial leader as follows: Consider, for example, the question that has flared up in recent years, whether it is proper for foremen in plants to affiliate in unions with other employees. . . . This issue is less one of ideology than of determining what is a sound method of industrial administration.28 This is the opinion of one individual. Another writer has said: " The employers' case against foremen's organization and collective bargaining, in addition to the fallacious claim that supervisors are management and not employees, repeats many of the arguments formerly used by anti-union employers against the organization of rank and file employees in the same industries." 26 Though the conflict of interest between an independent union of foremen and higher management is inevitable over some issues, the foreman as an individual is likely to have the same conflict of interest, though he may not always express it. At any rate, we cannot conclude that the foreman is disloyal to his firm because he wants higher wages or grievance machinery. Though it is recognized that certain unions of foremen have contact and relations with unions of production workers, this 25 S. A. Lewisohn, Human

Leadership

in Industry,

p. 3.

26 See Millis' dissent in Maryland Drydock Co., 49 N. L. R . B. 733, 746 (1943)-

THE

DUAL

STATUS

OF

FOREMEN

23

is not in itself sufficient to disqualify them from being called independent. Both the Board and the courts have recognized this situation. A s long as the policies, laws, and regulations are determined by the union, it may be called independent. There must be freedom of action and freedom from control. T h e mere status of union membership is not sufficient to cause a foreman to forget that he is part of management. 5. If foremen are affiliated with a rank and file union, no encouragement should be given to them by the government. For under such organization, the conflict of interest frequently may be decisive. The foreman could be subjected to pressure by the union to exercise his disciplinary powers laxly, or he might propose and even compel employees to join the union in which he is enrolled. The difficulties implicit in such a situation may be illustrated with reference to the coal industry where units of foremen and units of production workers are both part of the United Mine Workers of America. Not only, therefore, does the possibility arise that the inspectors who must decide that the mines are safe, may prevent the workers from entering the mines, as part of union strategy, since the inspectors themselves are part of the union; but all supervisors who join the union must take an oath of allegiance to the union, which is similar to that taken by any ordinary miner. It should be stressed that the union is enlisting all of the foremen at the mine with the result that all spot decisions must be made by union members if the organization has been completed at that mine. S o that while it often happens that special spot bargaining must be engaged in between the foreman and the coal miner in certain types of work, the foreman has sworn to attempt to get the highest possible wages for fellow union members, under his oath. It is not sufficient nor satisfactory, to point out, as the Board and others have done, that the employer still has the power of making a contract, and that these matters can be ironed out there. For though it is within the realm of possibility for the employer to force the mine workers'

24

THE

FOREMAN

IN

INDUSTRIAL

RELATIONS

union to modify the oath which it requires of foremen, there has been engendered unnecessary ill will between the groups. Since it is unwise to add further complexities to the already complicated labor relations picture, such groupings for collective bargaining should be avoided, if feasible. One circuit court of appeals has ruled that the Board incorrectly lumped licensed and unlicensed maritime personnel in one bargaining unit. 27 6. The Board has asserted that its discretion is limited. It cannot prevent the employees from choosing any representative which those employees desire even if the representative also deals for the rank and file workers. Chairman Herzog has said 28 that Section 9 ( b ) of the Act authorizes the Board to group employees appropriately rather than to exclude them from coverage; and that nowhere does it say that despite the desires of a group of employees, they cannot select a representative to bargain for them. The position taken by the Board seems unwarranted for two reasons. In the first place, the Act gives the Board the power to determine whether it will investigate any representation disputes. The Board " may " investigate them, though it need not. 29 There can be no appeal to the courts from rulings of the Board that a proposed unit for collective bargaining is inappropriate. Not only is the Board's refusal to certify not reviewable, but even when the Board does issue a certification, the action cannot be challenged directly. The United States Supreme Court has said that the rulings in representation cases are subject to challenge only when a complaint of unfair labor practice and an order by the Board requires the employer to do some27 N. L. R. B. v. Delaware-New Jersey Ferry Co., 128 F. 2d 130 C C A 3

1942.

28 Packard Motor Car Co., 64 N. L. R. B. 1212, 1215 (1945). 29 " Sec. 9. ( c ) Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy

THE

DUAL

STATUS

OF

FOREMEN

2¡

thing which is predicated upon a certification. 3 0 T h i s results in an indirect review of the certification. But there cannot be a review if the B o a r d refuses to certify or entertain a complaint. In the second place, t h o u g h the B o a r d disclaims its authority to prevent and control the selection of the bargaining representative for foremen, it is constantly including some foremen in the unit, thus permitting them to have representatives, while excluding certain others f r o m the unit. Foremen have been excluded from a unit and hence been denied the opportunity of a particular representative because of the diversity of interests between themselves and the others. 3 1 T h e Board can and does use its authority to permit or bar foremen f r o m selecting particular representatives. T h i s discretion should be used especially to prevent the affiliation of foremen with the workers they supervise, for Section 9 ( b ) of the A c t says that the unit selected should effectuate the policies of the A c t . 7. It is not clear whether strikes by foremen have increased or decreased as a result of the Board's policies. Management often has reiterated that the purpose of the A c t is to increase production and output. T h e courts have not directly so construed the statute. T h e Supreme C o u r t has emphasized particularly the rights of self-organization and collective bargaining. 32 T h e purposes of the A c t are essentially to discourage strikes for recognition, and to encourage collective bargaining in order to discourage other kinds of strikes. T h e

Supreme

Court also has emphasized the importance of the free flow of commerce and the prevention of strikes and labor disputes. 83 T h e courts have, therefore, stressed the importance of

the

right of collective bargaining. Congress was interested in the problem of production, but it w a s interested also in the problem of wages. T h e N . L . R . B . , however, has not seen its function 30 See Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U. S. 146, 134 (1941). 31 Eleventh Annual Report of the N. L. R. B. (1946), p. 31. 32 N. L. R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240, 257 (1939). 33 N . L . R . B. v. F a i n b l a t t , 306 U . S . 601, 604 (1939).

26

THE

FOREMAN

IN

INDUSTRIAL

RELATIONS

clearly, when it stated that it had no concern as to what was best for industry or employees. It said: As the statute is now written, we find no authority to step beyond this point and, because of some concern as to what might be best for industry or even for employees, declare that certain employees may not express their uninhibited choice because that petitioner happens to be an affiliate of the labor organization which represents a company's rank and file employees.84 One function of the Board is to balance and weigh the factors and the results of its actions so as to maximize the benefits secured from the Act. This must take account of the right of collective bargaining, the continuous flow of the production in the economic system, and, perhaps, the needs of the public and consumers who desire the elimination of industrial strife and strikes. Industry generally has tried to show that strikes by foremen have increased as a result of their unionization and Board encouragement to do so; and have induced a situation contrary to the purposes of the Act. The Board has endeavored to show that it has caused a reduction in the number of strikes because it permits foremen to unionize. The record showed that from July I, 1943, through November 1944, a period when the Board did not certify units of foremen as appropriate, there were twenty strikes of supervisory employees. 35 These strikes involved 1 3 1 , 0 0 0 employees and caused the loss of 669,159 man-days of work, of which 96 per cent was lost in strikes for recognition. And the Board emphasizes the fact that its orderly processes have been successful in eliminating recognition strikes. The uncertainty of the conclusion arises from the fact that it is difficult to determine just how many strikes by foremen would not have occurred if there were no Board. But though strikes are not desirable, they must be considered in relation to the other factors involved. 34 Jones & Laughlin Steel Corp., 66 N. L. R. B. 386, 399 (1946). 35 Tenth Annual Report of the N. L. R. B. (1945), p. 31, footnote 86.

THE

DUAL

STATUS

OF

FOREMEN

2J

8. T h e r e is no dispute that the A c t was intended primarily for the ordinary production and maintenance worker.

And

historically, with few significant exceptions, the foremen of an industry have neither the need nor the desire to organize until after the production w o r k e r s have done so and secured recognition. Foremen sometimes have been used by top management in union-breaking activities, especially in the mass production industries. T h e complaint has been put forth by industrialists that one of the results of the Board's policy which permits a unit of foremen to be certified has been to encourage the unionization of foremen even before the rank and file workers have unionized. Once

the supervisors have joined the union, the

ordinary

workers then are coerced into j o i n i n g the organization. A n d such coercion has been barred by the A c t . A development of this nature is found in the case of Stanley Corporation of America, 3 6 where the bulk of the employees in the theaters involved had not yet been organized when the

supervisors

requested certification. W h i l e there may be coercion in such a situation, the circumstances are not much different f r o m those in which the rank and file employees have unionized already, and there are rival unions competing for their membership. T h i s condition merely reenforces the argument for the need of independent unions of foremen. 9. T h o s e w h o fear increased governmental intervention in business affairs often oppose the movement of the unionization of foremen. S o m e business leaders think that if foremen become members of unions they will come within the purview of governmental agencies, thereby increasing the area of control over industry by government. 3 7 Other industrialists believe that this unionization of foremen in business is a step towards socialization. 38 3645 N- L. R. B. 625, 629 (1942), concurring opinion of Member Reilly. 37 " The Foreman Abdicates", Fortune, September 1945, p. 150. 38 Full Utilization of Manpower, Hearings before the Committee on Military Affairs, House of Representatives, 78 Congress, Session 1, 1943, pp. 84, 116, 156.

28

THE

FOREMAN

IN

INDUSTRIAL

RELATIONS

io. T h e existence of grievances was the original cause of the recent growth of unions among foremen. T h e change in the status of the foreman was largely responsible for his dissatisfaction. H i s complaints stemmed mainly from the circumstance that many of the production and maintenance workers had joined unions. A n d the unions had been successful in doing things for their members. The area separating the foreman from the worker he supervised had been narrowed in many ways and eliminated in others. T h e advantages of being a foreman had decreased. Employers, however, claimed that these inequities were temporary and have been largely remedied. They have argued before the courts that the grievances of foremen do not warrant their unionization. One court has answered this objection by declaring that if the foremen fall within the coverage of the statute, it is immaterial whether their grievances are or are not great. 39 A stronger argument, however, brought up in connection with foreman unionization and grievances, is that foremen, as the front line of management, usually represent the employer in the first stage of the grievance machinery for the production workers. It is there that the supervisor must recognize that he is acting for management, if he is to perform his tasks effectively. It would undoubtedly be impossible for a foreman to guard the interests of his employer if he were at the same time under the control of, and feared the union of the rank and file workers which is presenting the grievance to him. His membership in an independent union, however, need not weaken the inducements

he

has

to

act for

the

C.

CONCLUSIONS

firm,

when

handling

grievances.

It may be expected that management, on the one hand, and labor unions, on the other, will be partisan with respect to their desires in the matter of the unionization of foremen. It is to be 39 N. L. R. B. v. Packard Motor Car Co., 157 F. 2d 80, 83 CCA6 1946.

THE

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2g

hoped, however, that the government, whose actions may well be decisive, will take that position which will best encourage the development and further expansion of American industry. For the long-run effects are of vital importance and supersede those of the short run. Most vociferous in opposition to the organization of foremen have been the firms of the automotive industry. But what they have presented as their strongest argument has not shown itself to be so under analysis and examination. Even if it is admitted that under the National Labor Relations Act, supervisors are bound by the rule of law with regard to the fidelity of agents, in certain respects, it does not follow that collective bargaining between the employer and the foremen must be barred. Indeed, most of these companies stress the fact that collective bargaining is unnecessary, because adequate provisions for individual bargaining exist in regard to these employees. If the firms do not contend that bargaining on the part of their supervisors as individuals, weakens the fidelity of these supervisors, it cannot be urged that collective bargaining of itself is undesirable. But it is true that management is likely to suffer if foremen become part of a unit of rank and file workers or even if the foremen's unit is affiliated with the union of the workers they supervise. For then various pressures and temptations exist to act contrary to the interests of management. And if possible such a situation must be avoided.40 Judicial decisions already have laid down the principle that the right of association and unionization cannot be denied. Foremen, if they wish, may join unions of production and maintenance workers with or without the permission of the National Labor Relations Board, and in many cases they have done so. In looking to the future it should be recognized that no law can prevent the unionization of foremen for long, if 40 It may be wise also, to encourage unions of foremen not to affiliate with any federation of labor, at least until these unions are well established, so that they remain effectively independent.

30

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they desire to organize. But as management rightly has pointed out, in its subsidiary arguments, there must be a cleavage between the ordinary worker and the foreman in their unionization, both to protect the rights of the ordinary worker and to prevent his intimidation, as well as to assure the loyalty of the supervisor to the firm. This can best be done by governmental encouragement of independent organizations of foremen. The federal government has the means, through the National Labor Relations Act, of guiding the labor movement in various ways. Its policy would be constructive if it would strive to foster unions of foremen which are not affiliated with unions of other workers. Industry will be built on a sounder foundation in this way. Obviously, it is impossible to say that even a clear governmental pronouncement in this matter will result in the elimination or separation of those unions which are affiliated already. At this late stage, either the foremen or the rank and file workers may resist such an attempt. But an honest effort to establish such a policy must be made, by Congressional action if the Board feels it does not have the authority to proceed in this way. Though it is doubtful, the courts may require the N.L.R.B. to take this position. Insofar as it is possible, however, the Board should try to encourage independence of a rigorous sort from a foreman's union. While there is a relationship between different parts of the labor movement, the policies and decisions of a foreman's union can be independent. This can be the goal of the government. Indeed, former Board Member Gerard D. Reilly whose views, in a large measure, coincided with those of management, saw the weaknesses of management's argument regarding fidelity of agents and said in the second Packard decision: If the certified organization were really independent or took steps to guarantee against future instances of collaboration, or if the certification contained safeguards which would

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effectively insulate its activities from the union of the rank and file, I should feel quite differently about the matter. 41 A compromise of this kind meets the needs and desires of foremen, and meets the legitimate objections of management. There is no necessary conflict between independent unions of foremen and the purposes to be effectuated by the Act. T h e government can lay the foundation so that though management vigorously opposes unions of foremen at the present time, it will become customary in industry in the future. And many unions would approve such a policy since they feel that foremen should not be represented by the same union as the rank and file employees. In commenting on a remark, at a Senate hearing, that supervisors should not be part of a rank and file union, William Green, president of the American Federation of Labor said: " There may be merit in your proposal, that if they want to organize they ought to organize separately and as supervisory employees." 4 2

41 64 N. L. R. B. 1212, 1218 (1945). 42 Labor Disputes Act of 1946, Hearings before a Subcommittee of the Committee on Education and Labor, United States Senate, 79 Congress, Session 2, on H. R. 4908, 1946, p. 118.

CHAPTER II W H A T IS A FOREMAN? A.

T H E C H A N G I N G P O S I T I O N OF F O R E M E N I N I N D U S T R Y

IT is necessary to consider the changing functions of the foreman to realize that the equivalent of the " foreman " of fifty years ago rarely can be found today. The definition of " foreman " must depend, largely, upon a description of the duties involved, and this definition will be used as a guide in further analysis. For some agreement must be reached as to who is, and who is not, included in the term. There has not been a thorough nor detailed study made of the activities of the foreman of the nineteenth and early twentieth centuries. Only glimpses and brief descriptions of his status are available. Though the changes in the functions of the foreman are outlined below, as an aid in comprehending the problems of the foreman and in establishing a useful definition, recognition must always be given to the variations in duties and responsibilities of the foreman. These differences are affected not only by the time period being considered, but because of the different industries involved. And even within an industry, the duties depend on the particular job. The evolution of the position of the foreman in American business suggests a significant trend. Industry has become more integrated and the size of the average firm has grown in the last five decades. When the foreman was in charge of a small factory or an independent unit of an enterprise, his authority and his responsibilities were greater. He was in contact with the owner, and was his representative in the shop. The functions of the foreman were all-inclusive. To some extent, he was the route man, instruction card man, time and cost clerk, disciplinarian, gang boss, speed 32

WHAT

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33

FOREMAN?

boss, repair boss, and inspector. He was in charge of the planning of production and the handling of the workers. At the end of the nineteenth century, industry was characterized by line organization. The foreman was in charge of all management functions in his department. Not only was he responsible for the quantity and quality of production, but he hired, promoted, laid off, and fired the men, and also supervised their training and wage payment. Although the individual workman could appeal to higher management whenever dissatisfied, rarely did the workman take such action. In any event, the foreman could make decisions and act upon them immediately. He usually did not have to wait for the approval of his superior before taking action. Shortly before the first World War, it appears that the functions of the foreman were still the same.2 As industrial organization continued to become more complex, the position of the foreman began to weaken. The foreman had been in complete control of his production schedule, but with the growing specialization, division of labor, and departmentalized production, he became more dependent upon other foremen for his materials. Assembly line output makes coordination vital. Therefore, over-all supervision to prevent costly delays and unsatisfactory quality was introduced. The opening wedge in reducing the foreman's authority came in connection with his production functions but soon spread to his control of personnel. Centralization of control over production seems generally to have occurred earlier than centralization of control over wage and labor policies. Inequalities among the different sections of the plant and between time and piece rates could not remain too pronounced when production was becoming centralized, for the workers would become dissatisfied. Uniformity of policy throughout the factory was a concomitant of modern industrial techniques. 1

1 F. Watts, An Introduction pp. 112-13.

to the Psychological

2 F. W . Taylor, Shop Management,

Problems

1911 ed., pp. 94-95.

of

Industry,

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The process of business organization has centralized discretion. The loss of the powers and responsibilities of the foreman was the result of technological, organizational, and functional development of industry. Four historical events have contributed vitally in causing the change in the position of the foreman. These episodes were the first World W a r , the severe depression of the early 1930's, the acceleration in trade union membership and power during the New Deal era, and the second World W a r . The first World W a r caused a serious labor shortage in many industries. The foreman required help in staffing his department, and this help often was supplied to him by a personnel department which was established in the plant and which made the preliminary, and sometimes final, selection of men. Because of the high labor turnover, the absolute firing power of the foreman was curtailed. Exit interviews were instituted, shop committees were created to hear grievances, and employees were transferred from one department to another whenever possible. In some cases, of course, when the foreman's power to hire and fire was taken away, he was still authorized to make recommendations regarding these conditions of employment. The foreman no longer recruits labor, rather he requisitions it. Although the techniques of hiring underwent some change during the depression in the early nineteen thirties, the policy changes which affected firing were more important. The establishment of employee representation plans and the new developments in the methods of layoff, led to a reduction in the authority of the foreman. The foreman was also affected by the attempts of industry to reduce costs. Businessmen seemed to be impressed with the notion that great savings could be realized by changing the methods of the foreman. The emphasis which Frederick W . Taylor had placed upon the functional foreman was now bearing fruit. The principle that each man should perform only one major function was being tested. Though the development of these ideas had been proceeding,

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the opportunity for accelerated application was made possible. Specialists of all kinds made surveys of the operations, and many weaknesses were found. Since the foreman was at the center of activities and issued the instructions to the workers, much criticism was leveled at him. Those individuals studying the structure of the organization criticized the foreman's methods of hiring, of planning, of coordinating, of handling of materials, of stores, of direction of workers, and his unsatisfactory handling of costs. The expert studied one phase of the work and could often perform that particular task better than the foreman, since the duties of the foreman were more diverse and numerous. Businessmen began to feel that these tasks had to be done for the foreman, and gradually his responsibilities were confined. The foreman himself became a specialist in directing the work for the employer, having given up many of his administrative, discretionary, and confidential functions. Even when an attempt was made to acquaint the foreman with the improved techniques, he could rarely grasp what was desired of him. For the experts who had spent months in studying the problems and improving the methods, spent only hours in teaching the foreman. This was not enough time to enable the foreman to get a clear conception of what was wanted of him and why. A s a result the foreman could not do what was expected of him, and others were brought in to do these things. Perhaps the most significant event affecting the role of the foreman has been the growth of the trade union movement after 1933, under the encouragement of New Deal policies and laws—particularly the National Industrial Recovery Act and the Wagner Act. A s industry became more unionized, the employees in the various plants put up serious obstacles to the controls and authority which had been exercised by the foreman. The workers chose as their representative either a shop steward or shop commiteeman to handle their grievances, and this representative coming into newly-found power fre-

36

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quently attempted to undermine the position of the foreman. The study of the union agreement and its administration,