Johns-Manville Products Corp.

In the Matter of JoHNS-MANv'II.LE PRODUCTS CORPORATION and WATCHMEN'S PROTTCTIVE ORGANIZATION, FEDERAL LOCAL, AFFILI- ATED WITH A. F. OF L. Case No. R-4.128.Decided October 22, 1942 Jurisdiction : asbestos and refractory products manufacturing industry. Investigation and Certification of Representatives : existence of question : refusal' to accord petitioner recognition; election necessary. Unit Appropriate for Collective Bargaining : watchmen and guards at one of Company's plants, excluding chief guard and assistant chief guard. Definitions : plant-protection employees possessing a quasi-military status by virtue of requirement of Navy, held employees within the meaning of the. Act. Mr. Arthur L. Fisk, Jr., of New York City, for the Company. Mr. S. 0. Lippman, of Chicago, Ill., for the Union. Mr. Seymour J. Spelman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Watchmen's Protective Organization,- Federal Local, A. F. L., herein called the Union, alleging that a, question affecting commerce had arisen concerning the representation of employees of- Johns-Manville Products Corporation, Waukegan, Illinois, herein called the Company, the National Labor Relations Board provided for 'an appropriate hearing upon due notice before Robert E. Dickman, Trial Examiner. Said hearing was held at Chicago, Illinois, on August 7, 1942. The Company and the Union appeared, participated, and were afforded full opportunity to be_ heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On August 19 and 20, respectively, the Company and the Union filed briefs which have been considered by the Board. 45 N. L. R. B., No. 6. 33 493508-43-vol. 45-3 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Johns-Manville Products Corporation, a Delaware corporation having its office and plant in Waukegan, Illinois, is engaged in the manufacture of asbestos products, and refractory and construction materials. The purchases of raw materials for the period between January 1 and July 1, 1942, were in excess of $5,000,000, more than 50 percent of which was shipped into the State of Illinois from points without the State. The sales of the finished products during the same period were in excess of $12,000,000, more than 50 percent of which was shipped to places outside the State of Illinois. The Company concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. H. TIIE ORGANIZATION INVOLVED Watchmen's Protective Organization, Federal Local, is a labor organization, affiliated with the American Federation of Labor, ,admitting to membership employees of the Company.' III. TIIE QUESTION CONCERNING REPRESENTATION On or about June 2, 1942, Owen S. James, an organizer for the American Federation of Labor, orally informed H. H. Peterson, Industrial Relations Manager of the Company , that a majority of the watchmen and guards employed by the Company had designated the Union as their exclusive bargaining agent, and requested recognition. This request for recognition was refused by the Company. On June 15, 1942, the Union renewed its claim in a letter, but the Company made no answer to this letter, since the Union had already filecl its petition in this proceeding. A statement of the Regional Director , introduced in'-evidence. at the hearing, shows that the Union represents a substantial number of employees in the unit hereinafter found appropriate.2 .'The Company contends that the Union is not a labor organization within the meaning of the Act. We find this contention to be without merit, since it appeals that on or about .Time 1, 1942, the Union applied to the American Federation of Labor for a charter and eRpects to receive it in the near future . 11doreo%er, the Union is now functioning under the general bylaws of the Ameiican Federation of Labor and watchmen and guards of the Company have become members of the Union, meeting regularly and paying dues The Regional Dnector . reported that the Union submitted 23 designations , all bearing apparently genuine original signatures and dates in May and June , 1942. All of the 23- "signatures are names of persons on the Company's pay roll of June 24,L1942a .,which pay roll contains the names of 23 persons in the alleged appropriate unit JOHNS-MANVILLE PRODUCTS CORPORATION 35. 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 UNIT The Union contends that 'all watchmen and guards at the Com- pany's plant in Waukegan, Illinois, excluding the chief guard, the assistant chief guard, and Jake Van Male, a "temporary" guard, con- stitute an appropriate unit. The plant-protection force of the Company is composed' of 23 watchmen and guards, 1 chief guard, and 1 assistant chief guard. The principal duties of the guards are policing ingress and egress of employees and visitors, inspecting trains and cars, and patrolling the grounds. Watchmen make periodic inspection tours of the plant, reporting infractions of Company rules and generally preserving peace. - There is an existing contract between the Company and Federal Labor Union 19,508, A. F. of L., in which the unit embraces all em- ployees except -,8'atchmem.and foremen. The Company contends that the establishment of a unit of watchmen and guards is-a violation of that contract, since the parties agreed to and did expressly exclude watchmen. The Company maintains that to permit a unit of-watch- men and guards to be represented by the Union, affiliated with the American Federation of Labor, would, in effect, expand the present unit of production and - maintenance employees to include, groups which had expressly been excluded. We find no merit in this con- tention. While watchmen are expressly excluded from the unit in the existing contract, such exclusion cannot be construed. to bar these excluded employees from the right to bargain collectively in an appropriate unit through any bargaining agent whom they may desire to represent. them, nor can it preclude the Union from repre- senting the watchmen.3 The- Company's plant-protection -force- was recently reorganized and enlarged, on the recommendation of the Federal Bureau- of Investigation. The Unified ° States Navy, considering the plant. protection force important to national defense, required these `em= ployees to swear an oath of allegiance to the United States. The Company argues that these watchmen are "taking the place of. mem- bers of-the armed forces in the protection of the plant" and that "whatever their rights under peaceful conditions, in time of war their right. to organization should be on a par with the members of the 3 Cf Matter of Chrysler Corporation ( Marysville plant ) and International Union, United Automobile"Workers of America, afjilaated with the 0. I. 0., 36 N. L. R. B. 157. - 36 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD a,rnied 'forces . .." ' This argument of the Company implies that watchmen are no longer "employees" within the meaning of the Act because of their quasi-military status. We' do not agree. The Com , piny still has the right to discharge for cause. Hiring, compensation for services performed, and general working conditions remain mat- ters to be adjusted between the employer and the employees. The essential employment relationship has not been altered and therefore the watchmen are "employees" within the meaning of the Act. The Company argues that the duties imposed upon these employees as guardians of the plant and the exercise of their rights as members of a union are incompatible and would divide their loyalties, thereby undermining the system of plant protection. We find this argument to be without merit. In the recent Cllry ler case 4 the Board stated : We perceive no necessary conflict between self-organization for collective bargaining and the faithful performance of duty. Freedom to choose It bargaining agent includes the right to select a representative which has been chosen to represent other em- ployees of the employer in a different bargaining unit. We are mindful of the increased responsibilities placed upon plant- protection employees in wartime, but the practices and pro- cedures of collective bargaining are flexible, and may make full allowance for such added responsibilities.5 If, in the instant case, the plant-protection employees select a local affiliated with the International to represent them as bargaining agent, it will- be incumbent upon the International to impose a proportionate responsibility upon both organized groups of employees in order that their respective duties may be adequately and impartially performed. The same reasons are applicable here. The Union desires to exclude the chief guard from the unit. The Company takes no position. Since the chief guard performs super- visory duties in respect to the guards without rank, we shall exclude him from the unit. The parties are in disagreement with respect to the assistant chief guard, and a "temporary" guard, Jake Vita Male, the Union seeking to exclude these two from the unit. .The assistant chief guard, although ordinarily performing the duties of a guard without rank, assumes the role of the chief guard iii the latter's absence. In view of the periodic supervisory nature of his duties, we shall exclude him Matter of Chrysler Corporation, Highland Park Plant, and Local 114, United Automobile, Aire, aft and Ayuucultural Implement Workers of America, affiliated with the C. 1: 0., 44 N.L R B-881 See also Matter of, F'rigidaii:e. Division, General Motors Corporation and United Elec- trical, Radio and Machine Workers of America, (C. I. 0.), 39 N. L R . B. 1108 and cases cited therein. JOHNS-MANVILLE. PRODUCTS CORPORATION 37 from the unit. Van Male, a former production employee of the Company, was made a guard in April 1942. His duties are the same as any other guard without rank and, therefore, we shall include him-in -the unit. We find that all watchmen and guards employed by the Company at its plant in Waukegan, Illinois, including Jake Van Male; ;but excluding the chief guard and the assistant chief guard, constitute a unit appropriate , for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. - V. THE DETERMINATION OF REPRESENTATIVES - We shall direct that the question concerning representation which has -arisen -be resolved by an election by secret ballot among the employees in the appropriate unit who were employed 'during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth, in the Direction. DIRECTION OF ELECTION - By virtue of and pursuant.- to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor RRela- tions Act, and pursuant- to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby - DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Johns-Manville Products Corporation, Waukegan, Illinois, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and super- vision of the Regional Director for. the Thirteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the employees in. the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately -preceding the date of this Direction, including any such employees who did not work during said pay-roll period because-they-were ill or on vacation or in the active military service or training, of the -United States, or temporarily laid off, but excluding any who have -since quit or been, discharged for cause, to determine whether or not they-desire to be represented by Watchmen's Protective Organiza- tion, Federal Local, affiliated with the American Federation of Labor, for the purposes of collective bargaining.