New England Tank Cleaning Co.

National Labor Relations Board - Board Decisions

Dec 2, 1966

161 N.L.R.B. 1474 (N.L.R.B. 1966)

1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New England Tank Cleaning Company and Teamsters Local 526,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Petitioner. Case 1-RC-
8181. December 2, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed unc'er Section 9(c) of the National
Labor Relations Act, a hearing was held before Robert Garner, Hear-
ing Officer of the National Labor Relations Board. The Hearing
Officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer, which has its headquarters in Cambridge, Mas-
sachusetts, has a 3-year contract with the United States Government
for the storage, distribution, and security of petroleum products at
the Tiverton Air Force P 0 L Retail Distribution Station in Tiver-
ton, Rhode Island. The Petitioner seeks to represent all yardmen
employed by the Employer at this facility, excluding all guards. The
Employer contends that the yardmen, because they regularly rotate
guard shifts on weekends, holidays, and in emergencies, are guards
as defined in the Act; and that as it has no employees other than
guards, the petition should be dismissed.
Under its contract, the Employer receives and unloads Govern-
ment-owned light fuels from tankers and/or barges; it stores and
subsequently reships such fuels on tankers and/or barges on a 24
hours per day 7 days per week basis; and it loads tank cars and trans-
port trucks 7 a.m. to 4 p.m. 5 days per week (Saturdays, Sundays,
and Federal holidays excepted). The Employer also protects all prod-
ucts as may be in storage and performs fire prevention, janitorial,
and maintenance services in connection therewith.
161 NLRB No. 134.
NEW ENGLAND TANK CLEANING Co. 1475
To perform the above services , the Employer employs 9 full-time
guards ," 2 or 3 part-time guards , and the 3 yardmen whose status is
in issue. On weekday day shifts, one full-time guard is required to be
stationed at the entrance gate . On all other shifts , when the gate is
locked, at least 2 guards are required for the purpose of making
hourly rounds of some 20 clock stations , in the course of which they
check for fire , tank leakage, or other mishap , and trespassers.2 The
Employer utilizes 3 guards on each of such shifts : one stays in the
gate office and the other 2 make rounds . The regular part-time guards
generally work weekends and holidays , as they have full-time jobs
with other employers . The yardmen , under a supervisor , work a 40-
hour week on the day shift during weekdays , and at such times per-
form nonguard functions , such as janitorial , maintenance , loading,
and unloading. In the past, they have filled in for guards in emer-
gencies. Prior to November 26, 1964, the Employer had 3 regular
part-time guards . However, on that date one of them terminated his
employment with the Employer . Shortly thereafter , the Employer
began to assign the yardmen , on a rotational basis , to work as guards
on the day shift on Saturdays , Sundays, and holidays, when the yard
is closed. On such assignments, they are paid overtime rates. On the
average, each yardman works 3 guard shifts per month.
Section 9 (b) (3) of the Act provides : "that the Board shall not
decide that any unit is appropriate . . . if it includes , together
with other employees, any individual employed as a guard to enforce
against employees and other persons rules to protect property of the
employer or to protect the safety of persons on the employer 's prem-
ises . . ." As the Board noted in its Walterboro decision ," "the legis-
lative history [of this Section] demonstrates that Congress was
concerned with the possibility that if guards were included in
production units, their loyalty to fellow union members might conflict
with their duty to report to their employer derelictions of duty or
violations of rules by employees." 4
'The guards are armed and wear a holster and belt, badges, and a helmet.
'The contract sets the above minimum requirements . It also provides that the Govern-
ment has the right to provide additional guards as needed.
8 Walterboro Manufacturing Corporation, 106 NLRB 1383, 1384.
' The House bill defined "supervisors " to include any employee "with police duties or
who is employed to act in other respects for the employer in dealing with other individuals
employed by the employer." H.R. No. 3020, 80th Congress, 1st Sess., 1947, Section
2(12) (b). The House Report explained that the bill excluded the several categories of em-
ployees defined as "supervisors" because "there must be in management and loyal to it
persons not subject to influence or control of unions." In describing the classifications to be
excluded for this reason , the report states that "plant policemen and guards prevent dis-
orders and report misconduct of employees and of unions and their members." H.R. No. 245,
80th Congress, 1st Sess. (1947), p. 16. Section 9(b) (3), which represented a compromise
on the more stringent counterpart in the House bill, nevertheless plainly had the same
purpose and effect of preventing guards from being in a position where there might be a
conflict between loyalty to fellow union members and duty to the employer.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here, as above-indicated, the 3 individuals whose status is in dis-
pute are employed full-time on weekdays as yardmen performing
nonguard functions and, more recently, are assigned in rotation on an
overtime basis on Saturdays, Sundays. and holidays to perform guard
duties-duties which were formerly performed by one regular part-
time guard. The time the yardmen spend in guard duties is about 13
percent of their total work time. Furthermore, on the occasions when
they perform guard duties, there are 2 other admitted guards work-
ing with them. Finally, the admitted guards and the disputed yard-
men comprise the Employer's total work complement at the Tiverton
facility.5
In the above circumstances, we do not believe that the yardmen
are guards within the meaning of Section 9(b) (3) of the Act. In our
view, this conclusion does no violence to the concern of Congress for
preventing guards from being in a position where there might be a
conflict between loyalty to fellow union members and duty to the
employer, as the yardmen are not. required to make rounds when
employees are working and they devote but a comparatively small
portion of their total working time performing such function under
the Employer's contract with the Government. Accordingly, we find
that the following employees constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of Section 9(b)
of the Act :
All yardmen employed by the Employer at its Tiverton, Rhode
Island, fuel tank plant, excluding guards, professional employees,
office clerical employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]6
5 Other than clerical employees in the office.
8 An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 1 within 7 days after
the date of this Decision and Direction of Election . The Regional Director shall make the
list available to all parties to the election . No extenssion of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances . Failure to comply
with this requirement shall be grounds for setting aside the election whenever proper ob-
jections are filed. Excelsior Underwear Inc., and Saluda Knitting Inc., 156 NLRB 1236.
Tyrone Hydraulics, Inc. and United Rubber, Cork , Linoleum and
Plastic Workers of America , AFL-CIO. Case 26-CA-2326..
December 5, 1966
DECISION AND ORDER
On August 2, 1966, Trial Examiner David E. Davis issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,
161 NLRB No. 135.