United States Gypsum Co.

National Labor Relations Board - Board Decisions

May 14, 1965

152 N.L.R.B. 624 (N.L.R.B. 1965)

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraph 2 (f) is amended by changing the period appearing at the
end of the paragraph to a comma, and by adding the words "as modi-
fied by the section entitled `Remedy' of the Board's Supplemental Deci-
sion and Order Amending Order Amending Order."
The paragraph of the Notice which contains reference to the date of
"December 4, 1963" is amended by striking that date and substituting
the date "August 31,1963."
MEMBER JENKINS, concurring in part :
I have grave doubts about the correctness of my colleagues' position
that the Supreme Court's decision in Textile Workers Union of Amer-
ica v. Darlington Manufacturing Company, 380 U.S. 263, is not appli-
cable to cases involving alleged violations of Section 8(a) (5) for clos-
ing a plant without prior bargaining. However, I need not reach that
issue here. I stated in my original opinion in this case that I agreed
that Respondent violated Section 8(a) (5), but rested that decision on
the clearly established fact that the bargaining it engaged in leading
to the last contract with the Union was sham bargaining and not under-
taken in good faith. I reaffirm that opinion here, including the remedy
I there proposed.
United States Gypsum Company and International Union of Elec-
trical Radio & Machine Workers, AFL-CIO , Petitioner. Case
No. 8-RC-5571. May 14, 1965
ORDER AMENDING CERTIFICATION
Following a Board-directed election conducted on November 6, 1964,
the Petitioner was certified as the exclusive bargaining representative
of "all production and maintenance employees at the Employer's War-
ren, Ohio, plant, on Phoenix Road, including the sample department
operator, storekeeper, all shipping department operators, the packing
department operator, and all production department operators, but
excluding all office clerical employees, guards, professional employees,
the works manager, superintendents, foremen, head machinist, head
mechanic, and all other supervisors as defined in the Act."
On November 13,1964, the Petitioner filed with the Board a motion
to amend and clairfy the unit so as to include four employees, classi-
fied as "firemen-watchmen." The Employer, on November 23, 1964,
filed a separate motion to amend and clarify so as to exclude the fire-
men-watchmen from the unit on the ground that they are guards within
the meaning of the Act. The Board having considered the motions and
having decided that they raised substantial and material issues of fact,
152 NLRB No. 62.
UNITED STATES GYPSUM COMPANY 625
issued an "Order Directing Hearing" on December 4,1964. A hearing
was held on January 6,1965, before Hearing Officer Nora Friel. There-
after, the Employer and the Petitioner filed briefs in support of their
positions, and the matter came on to the Board for consideration.
The record shows that the Employer employs four employees whom
it classifies as "firemen-watchmen." They are employed as such only
during the winter months when heat is required in the plant (approxi-
mately from October 1 to May 1). During the remainder of the year,
two of them are laid off, and the other two are employed in the produc-
tion department. All four are licensed by the State of Ohio as boiler-
firemen, having qualified by serving 3 years as boilerroom helpers and
then passing an examination given by the State.
The boilerroom operation is continuous, 7 days per week, during the
months when heat is needed. During the week, a fireman-watchman
is on duty on each of the three daily shifts, and the firemen-watchmen
work only as boilerroom employees. Each man works three weekends
in a row, and has the fourth weekend off, so that each weekend there
are three firemen-watchmen working, one to each shift, and the fourth
man is off. They are not uniformed, armed or deputized. They are
hourly rated, and are on the same payroll as all hourly rated plant
employees in the production and maintenance unit. They work under
the general direction of the plant engineer and are responsible directly
to the maintenance foreman or maintenance mechanic when a shift is
working.
On weekends during the heating season , if, as is usually the case,
the plant is not in operation, the employees in question have duties in
addition to those regularly performed as firemen. These additional
weekend duties consist of making rounds of the plant's 18 clock stations
located within a radius of 750 feet from the boilerhouse. On these
rounds they carry a clock which is punched at each station. They
make about seven tours during the course of each shift, the first consist-
ing of a complete round, and the remaining tours covering half of the
clock stations. The first tour takes about 20 minutes, and each of the
others takes about 10 minutes. Before making a first round, the fire-
man-watchman on duty reports to the boilerroom and takes care of his
fireman duties. He also returns to the boilerroom after each tour and
remain for approximately 1 hour before beginning the next tour. If
at any time on the weekend there are a substantial number of employees
working, or if a supervisor is present in the plant, the firemen-watch-
men do not make tours of the clock stations.'
'When necessary , the firemen -watchmen may be required to open the main gate for
authorized persons . However, it appears from the record that such is rarely necessary,
as all supervisory personnel have their own keys to the main gate The last man on
duty on Sunday must open the gate for the Monday morning shift and the Burns guard.
7 89-730-G 6-v of 152-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the week Burns guards , who are employees of, and supplied
by, the Burns Detective Agency, make tours of the clock stations in the
same manner as do the firemen-watchmen on weekends. They are uni-
formed but not armed or deputized. There are four such Burns guards.
Two of them man the gates during 16 hours (two shifts) each day,
checking visitors and trucks in and out of the plant, and a third makes
complete rounds of the plant's 18 clock stations. The fourth Burns
guard is a weekend relief man. No guard is on duty on the third shift
on the normal workdays of the plant and the fireman-watchman on
duty during that shift during the week is not required to make tours.
During the winter season the Employer has only three Burns guards.
It is undisputed that the Burns guards have the authority to enforce
plant rules with respect to employees or other persons engaged ' in
unauthorized conduct, or found in unauthorized areas of the plant.
However, it appears that the firemen-watchmen do not have the same
authority. The one fireman-watchman called as a witness testified
that although he would feel it incumbent upon him as an employee to
report unauthorized persons, he had never done so,2 had received no
instructions as to what procedure to follow in the event of such occur-
rence, and had not been informed that he had any such authority or
responsibility. He stated that, although he keeps his eyes open for
fires, lights, and machines that may have been left on, etc., he had
received no instructions with regard to making such "safety checks."
He further testified that he did not have any authority to enforce plant
rules against employees, as do the Burns guards, and that he had never
been instructed as to the nature of any plant rules.
The works manager of the plant testified that in the Employer's
opinion the firemen-watchmen have authority to enforce company
rules on unauthorized persons or employees found in the plant during
nonworking hours. He did not claim, however, that the firemen-
watchmen had ever been specifically instructed as to such duties. A
z Our dissenting colleague alludes to one occasion on which the fireman -watchman
called as a witness " told an employee he was in an area he should not be." The witness
testified that on that occasion he had just completed his rounds and had stopped to talk
to an employee be recognized as a truckdriver The works manager approached and
asked him who the other man was, and he replied he did not know, and that it turned
out this employee "had a truck being loaded in the lower shipping . . . and he was
just wandering around through the shop. " He first stated that he approached the
truckdriver to tell him he should put on a pair of safety glasses while in the plant area.
He later testified that after the works manager approached and questioned the man's
presence , he told him to return to the shipping area Still later he testified that he
would have told him to leave the area even if the works manager had not approached.
We do not feel that this one incident, supported as it is only by ambiguous testimony,
can be relied on to establish that the firemen-watchmen had authority to exclude or even
order unauthorized employees out of plant areas The fact remains that the witness told
the truckdriver to leave only after the works manager had questioned his presence in
the plant area , and the same witness testified flatly elsewhere in the record that he had
never reported any unauthorized person , theft , or infraction of plant rules , although he
has seen employees break plant rules and engage in theft that "didn't amount to much."
UNITED STATES GYPSUM COMPANY 627
copy of general instructions to firemen-watchmen was placed in evi-
dence by the Union. It does not contain any instructions dealing with
unauthorized persons or plant rules.
The Employer contends that the firemen-watchmen herein are guards
within the meaning of the Act, while the Petitioner contends that they
are not. 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 premises . . ." As
the Board noted in the Walterboro decision,3 "the legislative history
[of this Section] demonstrates that Congress was concerned with the
possibility that if guards were included in production units their loy-
alty to fellow union members might conflict with their duty to report
to their employer derelictions of duty or violations of rules by
employees." 4
We find merit in Petitioner's position that the firemen-watchmen's
weekend duty of making rounds of certain clock stations does not con-
stitute them guards within the meaning of the Act. Moreover, in per-
forming such duties, they do not wear uniforms; they are not armed
or deputized; they have received no specific instructions and have no
specific routine for making safety checks, checking for the presence of
unauthorized persons, the loss of property, the enforcement of plant
rules, or reporting same; and, they are not required to make rounds
when employees are working. Further, such duties are clearly sub-
ordinate to their duties and responsibilities as boilerroom employees.5
In view of all these factors, we find that the performance of watchman
duties by the firemen-watchmen, in the particular circumstances of this
case, does not in any realistic sense give rise to a conflict of loyalties
between that owed by the firemen-watchmen to their employer and that
owed by them to their fellow employees or union members.
On the basis of the foregoing, we find that, even in their limited
capacity as so-called watchmen, the firemen-watchmen are not
employed as guards for the purpose of enforcing plant protection rules
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 Cong, 1st Sess, 1947, Section
2(12)(b). The House report explained that the bill excluded the several categories of
employees 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
disorders and report misconduct of employees and of unions and their members."
H R No. 245, 80th Cong., 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.
6 The Union ' s witness testified that when necessary he foregoes rounds to tend to the
boilers
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against employees and other persons. Hence, we find that the firemen-
watchmen are not guards within the meaning of the Act, and we shall
amend the certifications of the appropriate unit to include them.
ORDER
IT IS HEREBY ORDERED that the certification heretofore issued in Case
No. 8-RC-5571 be, and it hereby is, amended to read as follows :
IT IS HERESY CERTIFIED that,6 pursuant to Section 9 (a) of the National
Labor Relations Act, as amended, International Union of Electrical,
Radio & Machine Workers, AFL-CIO, is the exclusive bargaining
representative for the purposes of collective bargaining, with respect
to rates of pay, wages, hours of employment, and other conditions of
employment, in a unit consisting of all production and maintenance
employees at the Employer's Warren, Ohio, plant on Phoenix Road,
including the sample department operator, storekeeper, all shipping
department operators, the packing department operator, all produc-
tion department operators, and the firemen-watchmen, but excluding
all office clerical employees, guards, professional employees, the works
manager, superintendents, foremen, head machinist, head mechanic,
and all other supervisors, as defined in the Act.
MEMBER JENBINS, dissenting:
I disagree with my colleagues' conclusion that the firemen-watchmen
are not guards within the meaning of Section 9(b) (3) of the Act.
As my colleagues note, in addition to their boilerroom work, the
employees in issue are required to make regular rounds of the Employ-
er's plant, punching at each of the 18 stations a watchmen's clock.
First, it seems clear that during these rounds the fireman-watchman
checks the areas for fires, water, and safety hazards. Moreover, I think
the record here warrants holding that in addition to the above checks,
these employees are expected to and do perform other functions con-
clusively establishing their status as guards. Thus, the Employer's
works manager testified that in making his rounds the fireman-watch-
man is required to check for the presence of persons, including employ-
ees, not authorized to be in the area, and to order them out. This wit-
ness also testified that the firemen-watchmen have the duty, inter alia,
of reporting pilfering by employees. The fireman-watchman called as
a witness by the Union, although asserting that such were not part of
his watchman's duties, admitted that he felt obligated to order employ-
ees and other persons out of areas in which they were not authorized
to be; that in his opinion this was one of the reasons he made the
rounds; that on one occasion he told an employee he was in an area
he should not be; and that he similarly felt obligated to report thefts
by employees, and to make certain employees observed company safety
a This amended certification is not to be construed as a new certification.
RABER-KIEF, INC. 629
rules. Moreover, it is clear from this record that the firemen-watch-
men have the duty as such to deny admittance to the plant to unauthor-
ized persons. Keys to the plant, including those to the gate, are
entrusted to the firemen-watchmen, and the fireman-watchman wit-
ness admitted that when someone rang the gate buzzer he would admit
them only if that person was authorized to be in the plant.
On this record as a whole, I must conclude that the employees in
issue do enforce plant protection rules against both employees and
other persons and are guards within the meaning of the Act. There-
fore, I would exclude them from the certified unit as required by Sec-
tion 9 (b) (3) of the Act.
CHAIRMAN MCCtLLOCH and MEMBER ZAGORIA took no part in the
consideration,of the above Order Amending Certification.
United Brotherhood of Carpenters & Joiners of America, Local
1281 , AFL-CIO [Raber-Kief, Inc.] and Ivan DiBoff. Case No.
19-CB-950. May 17,1965
DECISION AND ORDER
On January 14, 1965, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a brief in support thereof.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers
in connection with this case to a three-member panel [Chairman
McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent with
this Decision and Order.
The complaint alleges that, by refusing between June 24 and Sep-
tember 5, 1963, to refer Ivan DiBofe for employment with Raber-Kief,
Inc., pursuant to an exclusive hiring hall agreement, because of antag-
onism against DiBoff on the part of Business Agent Powell, the
152 NLRB No. 48.