Harvester War Depot, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1945

63 N.L.R.B. 249 (N.L.R.B. 1945)

In the Matter of HARVESTER WAR DEPOT, INC. and FIRE FIGHTERS
FEDERAL LABOR UNION, LOCAL 238142, A. F. L.
Case No. 8-R-1817.-Decided August 9, 1946
Mr. Robert E. Dickman, of Chicago, Ill., and Mr. J. D. Russell, of
Toledo, Ohio, for the Company.
Mr. William F. Strum, of Toledo, Ohio, for the A. F. L.
Mr. David A. Guberman, of Toledo, Ohio, for the C. I. 0.
Mr. Bruce C. Heath,, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by Fire Fighters' Federal Labor Union,
Local 238142, herein called the A. F. L., alleging that a question affect-
ing commerce had arisen concerning the representation of employees of
Harvester War Depot, Inc., of Rossforrd, Ohio, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Thomas E. Shroyer, Trial Exam-
iner. Said hearing was held at Toledo, Ohio, on May 28, 1945. The
Company, the A. F. L., and United Retail, Wholesale & Department
Store Employees of America, Local 363, C. I. 0.,' herein called the
C. I. 0., appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Harvester War Depot, Inc., is an Ohio corporation and a subsidiary
of International Harvester Company. At Rossford, Ohio, the Com-
i At the hearing the C . I. O. moved to intervene herein ; said motion was allowed by the
Trial Examiner.
63 N. L. It. B., No. 33.
249
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany operates a plant for the purpose of receiving, storing, and ship-
ping ordnance supplies for the United States Army. The plant is
owned by the Federal Government, and all materials handled are the
property of the United States Government. The amount of business
transacted annually is in excess of $100,000.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Fire Fighters' Federal Labor Union, Local 238142, affiliated with
the American Federation'of Labor, is a labor organization admitting
to membership employees of the Company.
United Retail, Wholesale & Department Store Employees of Amer-
ica, Local 363, affiliated with the Congress of Industrial Organizations,
is a labor organization admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the A. F. L. as
the exclusive bargaining representative of certain of its employees
until the A. F. L. has been certified by the Board in an appropriate
unit.
A statement of a Field Examiner, introduced into evidence at the
hearing, indicates that the A. F. L. and the C. I. O. represent a sub-
stantial number of employees' in the units hereinafter found appro-
priate.2
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 UNITS
The Company's plant-protection department is divided into a fire
department and a police department. The A. F. L. seeks a unit com-
posed solely of the non-militarized guards in the Company's fire de-
partment, excluding chiefs and assistant chiefs.3 The C. I. O. contends
that the unit should comprise the over-all plant-protection group, i. e.,
2 The Field Examiner reported that the A . F. L. submitted 27 authorization cards ; that
the names of 27 persons appearing on the cards were listed on the Company 's pay roll
of May 7, 1945 , which contained the names of 33 employees in the unit sought by the
A. F L ; and that the cards were dated 17 in March , 7 In April 1945, and 3 were undated.
At the hearing the C. I. 0 submitted to the Trial Examiner 42 authorization cards. The
names of 34 persons appearing on the cards were contained in the aforesaid pay roll.
The Trial Examiner 's check of the cards indicated the C. I. O. to have 6 members in
the unit petitioned for by the A. F. L. and 34 members in the unit of militarized guards
hereinafter found to be appropriate.
8 The hierachy Is as follows : plant protection chief, assistant plant protection chief,
police chief with three assistant chiefs, and the fire chief with two assistant chiefs All
parties are agreed that these employees are supervisory and should be excluded.
HARVESTER WAR DEPOT, INC. 251
both the fire and police departments. The Company takes the posi-
tion that militarized guards are not employees within the meaning
of the National Labor Relations Act, because (1) they perform
duties closely allied with management and are confidential; (2) if
said employees are in a unit and represented by a union which also
represents the rest of the Company's production and maintenance
employees,4 such membership will lessen their efficiency; and (3) they
are civilian auxiliaries of the military police.
Both the militarized guards and firemen are responsible to the chief
of plant-protection and his assistant. All of them are uniformed,
but the firemen furnish their own uniforms. The militarized guards
perform foot patrols, gate watches, check persons and vehicles in and
out of the premises, and report persons who violate the conduct and
safety rules of the Company. Their only contact with the non-mili-
tarized firemen occurs in the case of a major fire when they perform
police duties. In contrast the firemen make general inspections for fire
hazards and they repair and inspect fire alarm system, pressure pumps,
fire-fighter and miscellaneous equipment.
As to the first contention raised by the Company, there is nothing
in the record to indicate that the militarized guards supervise the
activities of production and maintenance employees, that they have
authority to discipline or make effective recommendation with respect
to the status of such employees, or that they have access to confidential
personnel files or matters pertaining to labor relations. The second
claim that the unit sought here by the C. I. 0. is inappropriate because
the C. I. 0. also represents the production and maintenance employees
of the Company is similarly without merit. The Board has repeatedly
held that there is no incompatibility between union membership and
faithful performance of duty, that a union which represents the other
employees of the Company may likewise represent the plant-protection
group even though they are militarized."
The remaining contention of the Company is predicated upon recent
rulings of the United States Circuit Courts of Appeals .s The Company
urges that the principles enunciated therein be applied to the instant
case. The Board however, does not acquiesce in those decisions, which
have not yet been passed upon by a Court of last resort. Accordingly,
we find that a unit of militarized guards is appropriate.
Since the firemen are not militarized nor do they have any monitorial
functions such as exercised by the guards, we shall not include firemen
4 The C. I. O. presently represents under contract the Company's production and main-
tenance employees.
S See Matter of Electric Auto-Lite Co., 62 N L R B. 1356 , Matter of Standard Steel
Spring Co , 62 N L R B 660, and cases cited therein
ON L. R. B. v. E. C. Atkins Co., 147. F. (2d) 730 (C. C. A. 7) ; N L. R. B. v. Jones
& Laughlin Steel Corp ., 146 F. ( 2d) 718 ( C. C. A. 6 ), cert. granted in both cases , remanded
on other grounds , June 4, 1945 , 65 S. Ct. 1413.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the unit of militarized guards. However, we shall accord the
firemen an opportunity to bargain collectively in a unit separate and
apart from that of the militarized personnel.'
We find the following groups of the Company's employees constitute
units appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
(1) All iron-militarized personnel of the Company's fire depart-
ment, excluding chief of plant protection, assistant chief of plant
protection, the fire chief, assistant fire chiefs and all or any other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees,
or effectively recommend such action.
(2) All the militarized personnel of the Company's police depart-
ment, excluding chief of plant protection, assistant chief of plant pro-
tection, the police chief, assistant police chiefs, and all or any other
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or
effectively recommend such action.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by elections by secret ballot among the employees
in the appropriate units who were employed during the pay-roll
period immediately preceding the date of the Direction of Elections
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTIONS
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 Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Harvester War
Depot, Inc., of Toledo, Ohio, elections 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 Eighth 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 units 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
7 See Matter a! National Fireworks, Inc., 62 N. L. R. B 271.
HARVESTER WAR DEPOT, INC. 253
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 deter-
mine (1) whether or not the employees in the fire department unit
desire to be represented by Fire Fighters' Federal Labor Union, Local
238142, affiliated with American Federation of Labor, or by United
Retail, Wholesale & Department Store Employees of America, Local
363, affiliated with the Congress of Industrial Organizations, for the
purposes of collective bargaining or by neither; and (2) whether or not
the employees in the police department unit desire to be represented by
United Retail, Wholesale & Department Store Employees of America,
Local 363, affiliated with the Congress of Industrial Organizations, for
the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Elections.