Louis Dreyfus Canada Ltd.

National Labor Relations Board - Board Decisions

Feb 28, 1984

268 N.L.R.B. 1254 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louis Dreyfus Canada Ltd., Employer-Petitioner
and Allied Services Division, Brotherhood of
Railway, Airline and Steamship Clerks, Freight
Handlers, Express and Station Employees'
Union. Cases 5-UC-200
28 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held before Hearing Officer Kevin J. Sturm. Fol-
lowing the hearing, and pursuant to Section 102.67
of the National Labor Relations Board's Rules and
Regulations, the case was transferred to the Na-
tional Labor Relations Board for decision. Thereaf-
ter, the Employer-Petitioner filed a brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the hearing officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in the case, the Board
finds:
Louis Dreyfus Canada Ltd. is a Canadian corpo-
ration engaged in the purchase and sale of grain
and operates a grain elevator located at Port Cov-
ington, Baltimore, Maryland. During 1982, a repre-
sentative period, the Employer received grain
valued in excess of $50,000 at its Port Covington
location directly from points outside the State of
Maryland, and shipped grain valued in excess of
$50,000 from its Port Covington location to points
outside the United States.
The Union contends that the petition should be
dismissed because the Employer is not an "employ-
er" within the meaning of Section 2(2) of the Na-
tional Labor Relations Act. The Employer-Peti-
tioner, on the other hand, contends that jurisdiction
is properly with the National Labor Relations
Board.
Section 2(2) of the Act defines "employer" to ex-
clude any person subject to the Railway Labor
Act. Accordingly, we requested that the National
Mediation Board determine the applicability of the
Railway Labor Act to the Employer. In reply, the
National Mediation Board advised:
l The name of the Union appears as amended at the hearing.
The record . . . indicates that Louis Drey-
fus is not engaged in common carriage activi-
ties, but merely performs the unloading of
hopper cars at its own grain elevator. The
movement of cars is incidental to that task.
Louis Dreyfus is not directly or indirectly
owned or controlled by, or under common
control with, any carrier subject to the Rail-
way Labor Act.... [T]he Board is of the
opinion that Louis Dreyfus Canada, Ltd., is
not a carrier subject to the Railway Labor
Act. 2
Therefore, we find that the Employer is engaged
in commerce within the meaning of the National
Labor Relations Act, and that it will effectuate the
policies of the Act to assert jurisdiction.
On I July 1983, subsequent to the expiration of
the most recent collective-bargaining agreement be-
tween the Employer and the Union, the Employer
filed this petition by which it urges the Board to
clarify the bargaining unit to exclude employees
designated "watchmen" in the recently expired
contract, because they are statutory guards. Based
on the following evidence, we find that the em-
ployees in question are guards within the meaning
of the Act.
The watchmen work on the premises of the Em-
ployer's grain elevator during nonoperating hours.
They watch for unauthorized individuals entering
the Employer's premises, ask intruders to leave,
and report to the police and management any indi-
viduals who refuse to leave. The Employer prohib-
its employees from remaining on, or returning to,
company property when they are not scheduled to
work. Watchmen treat off-duty employees in the
same manner as other intruders.
Watchmen make hourly rounds to 16 electronic
devices into which they insert a key triggering a
signal in a central office operated by a security
service company. Watchmen also prevent vandal-
ism, theft, and fires.
We find that the watchmen protect the Employ-
er's property. This responsibility includes prevent-
ing off-duty employees and other unauthorized in-
dividuals from entering the Employer's premises.
We conclude that the watchmen are guards within
the meaning of Section 9(b)(3) of the Act,3 which
prohibits finding appropriate any unit that includes
guards with other employees. We shall therefore
exclude them from the unit of employees the Union
represents.
2 Louis Dreyfus Canada, Ltd., 11 NMB No. II (Oct. 21, 1983).
a See Supreme Sugar Co., 258 NLRB 243, 244-245 (1981).
268 NLRB No. 211
1254
LOUIS DREYFUS CANADA LTD.
ORDER
IT IS HEREBY ORDERED that the existing recog-
nized unit of all employees employed by Louis
Dreyfus Canada Ltd. at its Port Covington Grain
Elevator, Baltimore, Maryland, and represented by
Allied Services Division, Brotherhood of Railway,
Airline and Steamship Clerks, Freight Handlers,
Express and Station Employees, is clarified to ex-
clude all guards as defined in the Act.
1255