Walterboro Manufacturing Corp.

National Labor Relations Board - Board DecisionsOct 30, 1953

106 N.L.R.B. 1383 (N.L.R.B. 1953)

WALTERBORO MANUFACTURING CORPORATION 1383 General Motors Corporation, 102 NLRB 1140. We find that the contract is not a bar to tis proceeding.2 4. We find, in agreement with the parties, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's plant at Maspeth, Long Island, New York, excluding shipping and receiving employees, office clerical employees, profes- sional employees, guards, watchmen, executives, foremen, and other supervisors, as defined in the Act. [Text of Direction of Election omitted from publication.] 2 Chairman Farmer and Member Rodgers agree that the contract is not a bar . However, they express no opinion now as to what effect they would accord evidence that a substantial part of the industry involved was covered by contracts of more than 2 years' duration. WALTERBORO MANUFACTURING CORPORATION' and IN- TERNATIONAL LADIES GARMENT WORKERS UNION, A.F.L., Petitioner. Case No. 11-RC-565. October 30, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Jerold B. Sindler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 4. The Petitioner seeks to represent a unit of the Employer's production and maintenance employees, including firemen and shipping clerks, but excluding watchmen, the chief mechanic, office clerical employees, technicians, professional employees, and supervisors. The Employer challenges the appropriateness of the proposed unit only to the extent of contending that the chief mechanic and the watchmen should be included in the unit. iThe name of the Employer appears as amended at the hearing z As a labor organization's showing of interest is an administrative matter to be deter- mined solely by the Board, we deny the Employer's motion to dismiss the petition upon the ground that the Petitioner's showing was inadequate. Kearney & Trecker Corporation, 95 NLRB 1125 Moreover, we are satisfied that the Petitioner's showing of interest is adequate. 106 NLRB No. 241. 1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The chief mechanic has the authority to hire, discharge, and discipline other employees. We find, accordingly, that he is a supervisor as defined in the Act. We shall exclude him from the unit. The watchmen spend approximately 75 percent of their time at regular maintenance work in the plant, and the remainder in watchmen duties--making plant rounds, punching time clocks at regular intervals , and reporting infractions of company rules. Section 9 (b) (3) 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 . . . ( Emphasis supplied.) It is clear that , as to their watchmen duties , these individuals are "guards" within the meaning of Section 9 (b) (3).' The only question is, whether the fact that they perform watchmen duties only 25 percent of their time is sufficient to remove them from the statutory category of "guards." Neither the statutory language nor the legislative history gives any indication of an intent to exclude part-time guards from the definition of "guards." The legislative history 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 em- ployees.4 An employee who spends only part of his time as a watchman will, of course, be in a position where the conflict between his loyalty to fellow union members and to his em- ployer will exist only part of the time. But the policy consid- erations which prompted the special treatment of "guards" are as applicable to part-time as to full-time guards. It is the nature of the duties of guards and not the percentage of time which they spend in such duties which is and should be con- SC. V. Hill & Company, Ire., 76 NLRB 158. 4 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. 3020, 80th Cong., 1st Sess., 1947, Sec. 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. Report No. 245, 80th Cong., 1st Sess. 1947, p. 16. See. 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 Compare The Texas Company, 85 NLRB 1211, where the Board held that individuals who spent as little as 20 percent of their time in supervisory duties were supervisors as defined in the Act. M. S. YOUNG & CO. 1385 trolling . Accordingly , we find that the watchmen are guards within the meaning of the Act and exclude them from the unit.5 We find that all production and maintenance employees of the Employer at its Walterboro , South Carolina , plant, including firemen and shipping clerks , but excluding office clerical employees , technicians , professional employees , chief me- chanic, watchmen , and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. A strike at the Employer ' s plant lasted from July '24, 1953, to August 31, 1953 . The Petitioner contends that only the employees working during the week ending July 24 should be permitted to vote. The Employer asserts that the usual payroll period should be used to determine eligibility to vote. We perceive no reason in the circumstances relied on by the Petitioner for altering the Board ' s usual practice of deter- mining voting eligibility by employment during the payroll period immediately preceding the date of the issuance of the Decision and Direction of Election.6 [Text of Direction of Election omitted from publication.] Member Murdock, concurring: I note with pleasure that this decision , both in result and approach , adopts my dissenting opinion (in which I was joined by ex - Member Reynolds ) issued 6 years ago in Radio Corpora- tion of America 76 NLRB 826, 828, with respect to the application of Section 9 (b) (3) of the Act to part - time ,watch- men. I am accordingly happy to join my colleagues in this decision and in reversing the long line of decisions inconsist- ent therewith which have issued since 1948. 5 To the extent that they are inconsistent with this decision past Board cases holding that part- time guards are not guards within the meaning of Section 9 (b) (3) of the Act are hereby overruled. 6Otis Steel Products Co., 95 NLRB 623. M. S. YOUNG & CO. and LOCAL NO. 1361, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, Petitioner. Case No. 4-RC-2063. October 30, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert B. Mintz, hearing officer. The hearing officer's rulings made at 106 NLRB No. 248.