American Service Bureau

National Labor Relations Board - Board Decisions

Aug 6, 1953

106 N.L.R.B. 622 (N.L.R.B. 1953)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer seeks to distinguish the Talladega case on the basis
that here it took steps to dissipate the effect of Cox's conduct
by directing her on March 26 to desist from her union activi-
ties. We do not consider this a persuasive distinction. The
Employer did not notify the employees that it disavowed Cox's
alleged coercive conduct. In these circumstances , we conclude
that the Employer, having failed to disavow for over 3 months
before the election its supervisor ' s alleged misconduct, may
not now upset the election results because of this conduct'
As it appears from the tally of ballots that the Petitioner has
secured a majority of the valid votes cast in the election, we
shall certify the Petitioner as the certified bargaining repre-
sentative of the employees in the appropriate unit.
[The Board certified Amalgamated Clothing Workers of
America, CIO , as the designated collective-bargaining repre-
sentative of the employees of the Employer in the unit found
appropriate in the Decision and Direction of Election herein.]
Chairman Farmer and Member Murdock took no part in the
consideration of the above Supplemental Decision and Certi-
fication of Representatives.
3 Talladega Cotton Factory, Inc., supra , and cases cited therein.
AMERICAN SERVICE BUREAU and INSURANCE AND ALLIED
WORKERS ORGANIZING COMMITTEE , CIO, Petitioner.
Case No. 21 -RC-2954 . August 6, 1953
SUPPLEMENTAL DECISION
On June 9, 1953 , the Board issued its Decision and Direction
of Election 1 in this case in which it directed that an election be
held among the investigators employed by the Employer at its
Los Angeles , California , office. On June 29, 1953, the Employer
timely filed the instant motion for reconsideration by the Board
of its Decision upon the grounds that : ( 1) Since the issuance of
the Decision , certain authorities cited as controlling therein
have been overruled by the United States Court of Appeals for
the Third Circuit; ( 2) the Board erred in finding that the in-
vestigators do not make recommendations in their reports of
investigations ; ( 3) the Board erred in stating that the fears of
the Employer are speculative and without record foundation;
and (4 ) the Board failed to understand certain contentions of
the Employer.
The Board has reconsidered its Decision and Direction of
Election in the light of the entire record in this case , the briefs
submitted by the parties , and the motion for reconsideration
1105 NLRB 485.
106 NLRB No. 106.
AMERICAN SERVICE BUREAU 623
together with the papers submitted in support thereof,' and
upon such reconsideration we affirm our original Decision,
with the following additions:
The Employer contends that its insurance inspectors come
within the literal definition of "guard" as that term is used by
the Act and that therefore the statutory restriction upon the
choice of representatives by guards is applicable to the in-
spectors here involved. We find, however, that these inspectors
are not guards within the meaning of Section 9 (b) of the Act,
inasmuch as they are not employed "as a guard to enforce . . .
rules to protect property of the employer or to protect the
safety of persons on the employer's premises; . . ."
The Employer alternately contends that even though the in-
spectors are not guards, the Board nevertheless should, be-
cause of their duties, apply to them the same restrictions which
the Act imposes upon the representation of guards. In con-
sidering this contention in our original Decision and Direction
of Election herein, we adverted to our holding in another case, 3
which has since been overruled by the court,4 that employees
who guard property not belonging to their own employer are not
guards within the statutory definition. However, reliance on
that case was merely an additional reason for not applying to
these inspectors the statutory guard restriction and not the
basic and fundamental reason for rejecting the Employer's
main position, which subsumes its guard analogy argument,
that there is such a conflict of interest between inspectors and
agents as to preclude them from being represented, even in
separate units, by the same labor organization.
Without regard to the fact that inspectors and agents are
employed by different employers, we do not believe that the
speculative possibility of collusion between inspectors and
agents in discharging their respective duties is sufficient to
deny inspectors, as employees, the full freedom normallycon-
templated by the Act of selecting representatives of their own
choosing. Such possibility of collusion, which could result in
disloyal acts, exists whether they are represented by a common
labor organization, by a separate labor organization, or by no
labor organization. We believe that integrity is a personal
matter unaffected by union membership. Therefore, the only
type of disloyalty which the Board may properly consider in
this case is that which could reasonably be expected to ensue
from membership in a unit of inspectors represented by the
Petitioner, which also represents insurance agents. We find
nothing in the record to demonstrate that the loyalty of these
inspectors, in performing their duties on behalf of their Em-
ployer, would be impaired by reason of their membership in
2 The Employer also moved for oral argument and for rehearing. For the reasons set
forth in our original Decision we shall deny the request for oral argument.
9Brinks, Inc., 78 NLRB 1182.
4N L. R. B. v. American District Telegraph Co., 205 F. 2d 86 (C. A. 3).
624 DECISIONS OF NATIONAL'LABOR RELATIr"BOARD
the unit sought by the Petitioner. Indeed, we are satisfied that
the duties and obligations of these inspectors as members of
a labor organization which also represents agents, would not
require of them acts or deeds incompatible with the loyal dis-
charge of their duties as employees. We have reached this con-
clusion after giving due consideration to the legislative history
of the Act,s the nature of the employment of these inspectors,
the necessity for their complete loyalty to the Employer, and
the reasonably anticipated demands which might be made upon
them as members of the proposed unit.
Moreover, we would not reach a different conclusion even
assuming, as contended by the Employer, that the inspectors do
make recommendations in their report on investigations.$ In
the original Decision herein, we recognized that the inspectors'
reports could affect both the earnings and employment status of
insurance agents. We do not find that the inclusion of recom-
mendations in the reports would have any greater effect on the
earnings and employment status of the insurance agents, or on
the nature of the relationship between the agents and the in-
spectors insofar as representation by the Petitioner is con-
cerned.
Chairman Farmer and Member Styles took no part in the
consideration of the above Supplemental Decision.
5 The legislative history of the Act clearly shows that although the Congress considered
the subject of divided loyalty of certain classifications of employees whose duties placed them
in situations somewhat analogous to that of the inspectors here involved, it decided after
much deliberation to legislate restrictively only with regard to supervisors and guards.
6 Accordingly, we deny the Employer's motion for rehearing as to the alleged fact that the
investigators do make recommendations.
F. H. MCGRAW & COMPANY, Petitioner and LOCAL NO.
236, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMER-
ICA, AFL t
F. H. MCGRAW & COMPANY, Petitioner and OFFICE EM-
PLOYEES INTERNATIONAL UNION, AFL.: Cases Nos.
9-RM-87 and 9-RM-88. August 6, 1953
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, separate hearings were held
'Hereinafter called Teamsters. Office Employees International Union, AFL, hereinafter
called Office Workers, was permitted to intervene in Case No. 9-RM-87 on the basis of its
showing of interest.
2 Teamsters was permitted to intervene in Case No. 9-RM-88 on the basis of a contract
interest.
106 NLRB No. 105.