Budd Wheel Co.

National Labor Relations Board - Board Decisions

Sep 17, 1943

52 N.L.R.B. 666 (N.L.R.B. 1943)

In the Matter of BuDD WHEEL COMPANY and AMALGAMATED PLANT
PROTECTION LoCAL No . 114, UAW-CIO
Case No. R-5787.-Decided September 17, 1943
Beaumont, Smith & Harris, by Mr. Albert E. Meder, of Detroit,
Mich., for the Company.
Maurice Sugar and N. L. Smokier, by Mr. N. L. Smokier, of Detroit,
Mich., and Mr. Irving E. Griffeth, of Detroit, Mich., for the Union.
1l2ir. Robert E. Tillman of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Amalgamated Plant Protection Local
No. 114, UAW-CIO, herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Budd Wheel Company, Detroit, Michigan, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Sylvester J. Pheney, Trial Ex-
aminer. Said hearing was held at Detroit, Michigan, on July 30 and
August 3, 1943. The Company and the Union appeared, participated,
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The rulings of the Trial Examiner made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board. .
The Company moved at the hearing that the Union's petition be
dismissed on the ground that the Regional Director's report on repre-
sentation claims was merely hearsay. Ruling on the motion was re-
served for the Board. For the reasons stated in Section III, footnote
1, infra, the motion to dismiss is hereby denied.
52 N. L. R. B., No. 115.
666
BUDD WHEEL COMPANY 667
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FAOr
I. THE BUSINESS OF THE COMPANY
Budd Wheel Company, a Pennsylvania corporation, operates a
plant in Detroit, Michigan, on property which is the same or adjacent
to that on which are located plants of the Edward G. Budd Manufac-
turing Company, and of Budd Induction Heating, Inc. At its De-
troit plant, the Company is engaged in the manufacture of shells and
truck wheels, hubs, drums, and brake parts for the United States Gov-
ernment. From July 1, 1942, to July 1, 1913, the Company purchased
for use at its Detroit plant raw materials having an approximate value
of $20,000,000, of which 58 percent was shipped to the plant from
points outside the State of Michigan. During the same period the
Company sold to the Government finished products valued in excess of
$44,900,000. The Company admits that it is subject to the jurisdiction
of the Board.
II. THE ORGANIZATION INVOLVED
Amalgamated Plant Protection Local No. 114' is a labor organiza-
tion affiliated with United Automobile, Aircraft and Agricultural
Implement Workers of America, which in turn is affiliated with the
Congress of Industrial Organizations. It admits to membership
plant-protection employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that on June 18, 1943, the Union sent a letter
to the Company requesting that it be recognized as the exclusive col-
lective bargaining representative of certain of the Company's plant-
protection employees, and that the Company refused to recognize the
Union.
A statement of the Regional Director, introduced in evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found to be appropriate 1
I The Regional Director stated that the Union submitted to him 42 designation cards all
bearing apparently genuine original signatures, and that 40 of the signatures were names
of persons whose names appeared on the Company's pay roll for June 24, 194.9, which listed
51 employees in the plant-piotection force
In support of its motion to dismiss, the Company objects to the Board's reliance on the
Regional Director's statement on the grounds that it is hearsay and that there is no showing
that the signatures on the cards were compared to actual signatures. It is our opinion
that these contentions are entirely without merit. As we have stated before, "authorization
or membership cards are required, not as proof of the precise number of employees who
desne to be represented by a labor organization, or as a basis for determining the appropriate
iepresentative, but simply to provide a reasonable safeguard against the indiscriminate
668 DEICISIONS OF NAf IONAL LABOR RELATIONS BOARD
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties stipulated that should the Board find no merit to cer-
tain contentions of the Company (set out below) all plant-protection
employees of the Company's Detroit plant,2 excluding the chief, the
sergeants, and other supervisory employees, would constitute an appro-
priate unit.
The Company contends that a unit composed of members of its
plant-protection force is not appropriate for the purposes of collec-
tive bargaining. In support of its position the Company advances
several arguments, none of which is novel, and not all of which are
directed solely at the question of an appropriate unit. In its brief,
the Company asserts its familiarity with our past decisions on units
of guards, but contends that we erred in those decisions. The Com-
pany's contentions against a unit of plant-protection employees are
as follows :
(a) That plant-protection employees are a part of supervision and
management: This contention has been made many times before the
Board and has repeatedly been rejected .3 There is no evidence in the
record of the instant case to indicate that the Company's guards per-
form any traditional supervisory functions ,4 or that they are any more
a part of management than have been the guards in other cases, and
we find it unnecessary, therefore, to set forth their duties herein.
The Company argues that Congress did not intend to include plant-
protection employees within the guarantee of collective bargaining
provided under the Act, any more than it intended to include foremen.
In deciding that foremen and other supervisory employees could not
constitute appropriate collective bargaining units under the Act,5 we
institution of representation proceedings by labor organizations which might have little or
no membership in the unit claimed to be appropriate",; see Matter of H. G . Hill Stores, Inc.,
Warehouse, footnote 2, and cases cited therein, 39 N. L. R. B . 874, 876. This safeguard
is adequately provided by a statement of the Regional Director made on the basis of a pay-
roll check in which signatures on designation cards are not compared with the actual signa-
tures of employees, but with their names.
2 The plant -protection employees of the Company patrol and protect the property of the
Company. In addition they provide the sole plant protection services for the adjacent
plants of Budd Induction Heating, Inc., and The Edward G. Budd Manufacturing Company.
8 See, for example , Matter of Chrysler Corporation, Highland Park Plant , 44 N. L. R. B.
881; Matter of Campbell Soup Company ( Camden, New Jersey, plant ), 45 N. L. R. B. 6;
Matter of Johns-Manville Products Corporation, 45 N. L. R. B. 33; and Matter of Bethlehem
Steel Company, Shipbuilding Division, Baltimore Yard, 46 N. L. It. B. 1166.
It does appear that guards may recommend the discharge of employees violating rules of
the Company . We have held that this power is not to be compared with the power to
recommend discharges commonly possessed by supervisory employees ; see Matter of
Aluminum Company of America, 50 N. L . It. B. 963.
5 Matter of The Maryland Drydock Company , 49 N. L . R. B. 733.
BUDD WHEEL COMPANY 669
did not hold that they were not employees within the definition of
"employees" in Section 2 (3) of the Act; nor did we find that it was
the intent of Congress not to include them within the guarantee of
collective bargaining. Rather, we found that in the absence of a clear
expression of Congressional intent it was left to the administrative
discretion of the Board to determine whether a specific group-of em-
ployees was,to be included within this guarantee. We then found
that the benefits which supervisory employees would achieve through
being certified as collective bargaining units "would be outweighed
not only by the dangers inherent in the commingling of management
and employee functions, but also in its possible restrictive effect upon
the organizational freedom of rank and file employees," and that such
units would "impede the processes of collective bargaining, disrupt
established managerial and production techniques, and militate against
effectuation of the policies of the Act." We are not convinced that
these same findings or conclusions are equally applicable to plant-,
protection employees.6 Thus it may not be argued that management
requires the services of plant-protection employees at the conference
table; or that management would on the one hand be compelled to
bargain with its plant-protection force as employees, and would on
the other hand be held responsible under the Act for actions of plant-
protection employees in encouraging or discouraging employee organi-
zation; or that the position of plant-protection employees in the plant
set-up is sufficiently dominant like that of supervisory employees so
that their participation in collective bargaining would unduly influ-
ence the full freedom of choice of the rank and file employees which
the Act guarantees. We therefore reaffirm our previous holdings that
plant-protection employees may constitute appropriate collective bar-
gaining units under the Act.
(b) That the guards are auxiliaries to the militarized police: We
have held in numerous cases that this change in the status of guards,
growing out of the war, does not deprive them of the rights of col-
lective bargaining guaranteed to employees under the Act.° In the
instant case, the Company's peace-time control over its guards has not
been altered materially. ^ The Company still hires and discharges the
guards, fixes their rates of pay, and pays their wages. They are,
therefore, still employees of the Company."
(c) That it is contrary to public policy, especially in time of war,
to extend the protection of the Act to guards: No evidence is offered
0 Cf. Matter of The Maryland Drydock Company , 50 N L R B 363.
' See, for example , Matter of Chrysler Corporation , Highland Park Plant , 44 N. L. R. B.
881; Matter of Campbell Soup Company ( Camden, New Jersey, plant), 45 N. L. R. B. 6;
and Matter of Dravo Corporation , 52 N L R B. 322
8 The War Department directive as to auxiliary military police specifically provides that
existing employer-employee relationships remain unchanged , and that auxiliary military
police are permitted to bargain collectively.
670 DECISION'S OF NAfPIONIAL LABOR R'ELAT'IONS! BOARD
by the Company in support of this proposition. The fact that the
guards are now engaged in protecting property of the United States
Government is not in itself any reason for denying the rights of col-
lective bargaining to such employees.
(d) That it will not effectuate the policies of the Act to require the
Company to bargain collectively with the guards or with the Union
as the representative of the guards: The declared policy of the Act is
"to eliminate the causes of certain substantial obstructions to the
free flow of commerce and to mitigate and eliminate these obstructions
when they have occurred." Among the obstructions set forth in the
Act are "strikes and other forms of industrial strife or unrest" and
"inequality of bargaining power." It can hardly' be seriously con-
tended that such obstructions result only from conflict between pro-
duction employees and the employer. Nor do we believe that the
war has eliminated all these obstructions; on the contrary, strife and
unrest and inequality of bargaining power are likely to continue in
the absence of collective bargaining, particularly in the face of self-
imposed limitations on the right to strike and, in the case of militar-
ized guards, the necessary restrictions imposed by the Government.
(e) That it is inconsistent with the prosecution of the war effort to
order the Company to bargain collectively with its guards: In view of
what has been said in answer to preceding contentions, this argument
is unpersuasive. An efficient prosecution of the war effort demands
the preservation of the right to collective bargaining, not its
destruction.
(f) That there is no question affecting commerce and the Board has
no jurisdiction: This contention is in conflict with a stipulation
entered into earlier at the hearing, in which the Company admitted it
was subject to the jurisdiction of the Board. In Section III, supra,
on the basis of facts set out in Section I, supra, we found a question
concerning representation had arisen affecting commerce, within the
meaning of the Act. The contention that the Board has no jurisdic-
tion is rejected.
(g) That vender the collective bargaining contract' with a sister
local of the Union, covering production and maintenance employees,
the parent organization, the U. A. W., agreed not to represent the
Company's watchmen (or guards) : We find no provision in the above.
mentioned contract by which the U. A. W. bound itself not to organize
or represent watchmen or guards. The watchmen are among the
groups of employees specifically excluded from the production and
maintenance unit, but there is no basis for construing the mere exclu-
sion of a group of employees from a bargaining unit as an agreement
BUDD WHEEL COMPANY 671
not thereafter to organize or represent the excluded employees -in a
separate unit during the term of the contract.'
(h) That the guards are confidential employees: This contention
presents again the alleged close relationship of guards to management.
The record indicates that the Company's guards investigate the char-
acter and loyalty of other employees, and because of their patrolling
duties have access to highly secretive and confidential materials. A
similar allegation of'the confidential nature of the work of'guards was
made in the Chrysler case 10 There, we made no specific disposition of
the allegation. However, it may be assumed in most guard cases, that
the guards, because of the very nature of their duties, have access to
a wider range of confidential materials than do ordinary employees.
We feel that sufficient answer to this problem was made in the Chrysler
case 'wherein,we stated:
We perceive no necessary conflict between self-organization for
collective bargaining and the faithful performance of duty. Free-
dom to choose a bargaining agent includes the right to select a
representative which has been chosen to represent other employees
of the employer in a different bargaining unit. We are mindful
of the increased responsibilities placed upon plant-protection
employees in wartime, but the practices and procedures of collec-
tive bargaining are flexible, and may make full allowance for such
added responsibilities.
In prior cases involving plant guards, the Board has consistently
placed plant guards in units separate and apart from any unit of
production and maintenance employees. The principle of the separa-
bility of militarized guards from non-militarized guards or watchmen
was further enunciated in Matter of Dravo Corporation.11 While the
record in the instant case indicates that all the Company's guards are
militarized, nevertheless we consider that the language employed in
the Dravo case is sufficiently applicable herein to warrant quoting it
in full. There we stated :
The militarization of plant-protection employees, while no
obstacle to unionization, is nevertheless significant. As civilian
auxiliaries of a military force, the guards have greater duties and
obligations than have those plant-protection employees who are
not militarized. To the end that the guards may be better able to
function within the military sphere, and to permit the military
authorities to exercise greater control over the guards, we shall
establish a bargaining unit for all militarized plant-protection
employees. separate and apart from those who are non-militarized.
See Matter of Chrysler Corporation (Marysville Plant), 36 N L. R. B. 157, 160 , .und
Matter of Campbell Soup Company ( Camden, New Jersey, plant ), 45 N. L. R. B. 6, s
10 See footnote 3, supna.
11 52 N. L R. B. 322.
672 DEIC'ISIONS OF NAITION,AL LABOR RRLATIONSI BOARD
We contemplate that the separation of the bargaining units in
their negotiations with the Company and their day to day activi-
ties will be one of fact, not merely form.
In view of what has been stated above, we find that all militarized
plant-protection employees of the Company at its Detroit plant, exclud-
ing the chief, the sergeants, and all other supervisory employees having
the power to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. 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 em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of our Direction of Election
herein, subject to the limitations and additions set forth therein.
DIRECTION OF ELECTION
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 9, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DmECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Budd Wheel
Company, Detroit, Michigan, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Seventh Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, 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 temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged for,cause, to
determine whether or not they desire to be represented by Amalga-
mated Plant Protection Local No. 114, UAW-CIO, for the purposes
of collective bargaining.
CHAIRMAN MILMS took no part in the consideration of the above
Decision and Direction of Election.