American District Telegraph Co.

In the Matter of AMERICAN DISTRICT TELEGRAPH COMPANY and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 58, A. F. L. Case No. 7-C-1799.-Decided June 13, 1949 DECISION AND ORDER On January 31, 1949, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding, finding that the .Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto.' Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report, and the Respondent filed a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel [Members Houston, Reynolds, and Murdock]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions filed by the Respondent and the 'General Counsel, the brief filed by the Respondent, and the entire record in the case, and hereby adopts the findings and conclusions of the Trial Examiner, to the limited extent that they are consistent with our findings, conclusions, and order herein. 1. The Trial Examiner found, and we agree, that the Respondent is engaged in commerce, and activities which affect commerce, within the meaning of the Act. The Respondent's exception to the contrary is found to be without merit.' 1 Section 8 (1) and ( 5) of the National Labor Relations Act, which the Trial Examiner found was violated, is continued in Section (a) (1) and (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947 2 Matter of A. D. T Company, 73 N. L R B 265; Matter of American Protection Com- pany, Case No 9-R-2304, decided May 26, 1948; Matter of American District Telegraph Company of San Francisco, 78 N L R B. 150; Matter of American District Telegraph Company, 78 N L R. B. 864 , and cases cited in the Intermediate Report, footnote 9. .84 N. L. R. B., No. 24. 162 c,,AMERICAN-DISTRICT TELEGRAPH COMPANY , }-._; •, 163 2.n ,The - Trial ,Examiner found that- the Respondent, on and after July 31, 1947, unlawfully refused to bargain with the Union . as the statutory bargaining representative of employees in an appropriate bargaining unit consisting of "all employees of the Respondent in the, Detroit Metropolitan area, excluding office and clerical employees, -part time employees, resident guards and all supervisory employees 'as defined in the Act," the unit that the Board found appropriate and for which it certified the Union as the exclusive bargaining repre- sentative in Case No. 7-R-2292.3 Since the issuance of the certifica- tion in Case No. 7-R-2292, however; the National Labor Relations Act "has been amended so as to prohibit the Board from finding appropriate any unit that 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." 4 The Trial Examiner found, -contrary to the contention of the Respondent, that the above-described unit does not include any individual employed as a "guard" within the meaning of Section 9 (b) (3) of the amended Act. We cannot agree with this finding. We recently found, in a case involving a sister company of the Respondent at Los Angeles, California, that employees bearing the same classification and performing the same duties and functions as some of the operating department employees herein involved are "guards" within the definition of Section 9 (b) (3) : 5 We find, therefore, that some of the operating department employees are guards while other employees in the alleged unit are not guards.6 Thus, the unit found appropriate by the Trial Examiner is in contravention of the proscription in Section 9 (b) (3) of the amended Act. As the unit previously established by the Board and found appropriate by the Trial Examiner is now inappropriate, and .as the Union's majority status as established by the election in Case No. 7-R-2292 might be substantially affected by the exclusion of the .substantial number of employees hereinabove found to be guards,' we are of the opinion that it would not effectuate the policies of the Act, .as amended, to require the Respondent to take any remedial action 3 Matter of A. D T. Company, 73 N. L R. B 265. 4 Section 9 (b) (3) e Matter of American District Telegram Company/, 83 N L R B 517 Although Mr Houston dissented in that case , he considers himself bound by the decision of the majority therein. 6 We find that guard-operators in the operating department are guards , but that installers in the plant department are not. We consider it unnecessary at this time to determine whether or not the other employees involved are guards. ° Forty-nine votes were cast in favor of representation by the Union, 25 were cast against such representation , and 22 ballots were challenged At least 26 guard-operators would have to be excluded as guards The Union is affiliated with an organization which admits to membership employees other than guards, and therefore is ineligible to represent any unit of guards. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'in this case, which involves nothing except a refusal to bargain s Accordingly, we shall dismiss the complaint. ORDER IT IS HEREBY ORDERED that the complaint herein against the Re- spondent, American District Telegraph Company, Detroit, Michigan, be, and it hereby is, dismissed. INTERMEDIATE REPORT AND RECOMMENDED ORDER Messrs. Jerome H. Brooks and George A. Sweeney, for the General Counsel. Mr. Leonard A. Keller, of Detroit, Mich, and Mr. Gerard D. Reilly, of Wash- ington, D. C., of counsel , for the Respondent. Messrs. Frank C. Riley and Hugh Dorrian, for the Electrical Workers. STATEMENT OF THE CASE Upon amended charges filed on April 26, 1948, by the International Brother- hood of Electrical Workers, Local Union 58, A. F. L, herein designated as the Electrical Workers and occasionally as the local, the General Counsel of the, National Labor Relations Board,' in the name of the Board, caused the Regional Director for its Seventh Region, at Detroit, Michigan, to issue a complaint dated April 30, 1948, against the American D,istrict Telegraph Company of Detroit, Michigan, herein called the Respondent, which alleged that the Respondent did engage and has continued to engage in unfair `labor practices affecting com- merce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the original Act, and Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the statute as amended and reenacted in the Labor Management Relations Act of 1947, 61 Stat. 136, designated herein as the Act 1 Copies of the complaint, the amended charge and a notice of the hearing were duly served upon the Respondent and the Electrical Workers. With respect to the unfair labor practices, the complaint alleged in substance: (1) that all the employees of the Respondent in the Detroit metropolitan area, except for office and clerical employees, part time employees, resident guards, and supervisory employees as defined in the original Act, constituted and now constitute a unit appropriate for the purposes of collective bargaining, under Section 9 (a) and (b) of the original Act and Section 9 (a), (b) and (c) of the Act; (2) that the employees of the Respondent in the aforesaid unit desig- nated the Electrical Workers as their representative, under Section 9 (a) of the original Act, by a majority vote in a Board-directed election on May 7, 1947, and that the organization in question was certified as the exclusive representative of these-employees on June 4, 1947, thereafter; (3) that the Electrical Workers has been the exclusive representative of these employees, at all times since May 7, 8 Matter of Westinghouse Electric Corporation, 75 N L R B 1 , Matter of Mandel Brothers, Inc, 77 N. L R B 512; N. L R B v E. C. Atkins & Go, 165 F (2d) 659 (C A 7), and N L R B V Jones & Laughlin Steel Corp, 21 L R R M 2145, issued December 9, 1947 (C A 6) 1 The General Counsel and his representatives in this case are designated herein as the General Counsel, and the National Labor Relations Board as the Board 8 The statute will be designated also as "the amended Act ," "the amended statute" and "the Act as amended" 11hen such a designation is essential in the interest of clarity AMERICAN DISTRICT TELEGRAPH COMPANY 165 1947, for the purposes of collective bargaining ; ( 4) that the Respondent, since on or about May 14 , 1947, ' has refused to bargain with the Electrical Workers as the exclusive representative of the employees in the aforesaid unit; and (5) that the refusal of the Respondent to bargain must be characterized as an unfair labor practice under Section 8 (1) and ( 5) of the original Act, and Section 8 (a) (1) and ( 5) of the Act. Thereafter , on May 21, 1948 , the Respondent filed an answer, which denied the jurisdictional allegations of the complaint , admitted the character of the Elec- trical Workers as a labor organization under the original Act and the Act, and denied the commission of any unfair labor practices . In a concurrent motion to dismiss , filed with its answer, the Respondent reiterated its contention that it is not engaged in commerce or in an activity which affects commerce , and went on to allege that the original certification of the Electrical Workers must be con- sidered without effect , because contrary to law. It contended, in this connection, that the employees in the certified unit are guards within the meaning of Section 9 (b) (3) of the Act, and that the Electrical Workers should not be permitted to represent them. as a matter of law and public policy, because it admits employees other than guards to membership, and because it is affiliated , directly and indirectly, with labor organizations which admit to membership employees other than guards. In the alternative , the Respondent contended that some of the employees in the certified unit are guards , within the meaning of the statute as amended , and that the unit must be considered inappropriate for the purposes of any collective bargain , therefore , if it is found to include employees other than guards Pursuant to notice, a hearing was held at Detroit , Michigan , on various dates from June 21 to June 30, 1948, both dates inclusive , before the undersigned, Maurice M. Miller, the Trial Examiner duly designated by the, Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Electrical Workers by a business representative . All of the parties participated in the case, and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence pertinent to the issues . Counsel for the Respondent , at the outset of the hearing, argued in support of its motion to dismiss The motion was denied. Upon the renewal of the motion at the close of the case , decision was reserved by the undersigned. A decision on the notion is embodied in this report. In addition , at the close of the case, the General Counsel moved to conform the pleadings to the proof with respect to formal matters . This motion was granted without objection Oral argument was then presented , and forms a part of the record . A brief and supplemental memorandum have been received from counsel for the Respondent. FINDINGS OF FACT Upon the entire record in the case, and upon his observation of the witnesses, the undersigned makes the following findings of fact. 1. TIIE BUSINESS OF THE RESPONDENT The American District Telegraph Company, hereinafter designated as the Respondent, is a corporation duly licensed under the laws of the State of Michigan ; it maintains offices in Detroit and seven other Michigan cities. The instant case, however, involves its operations in the Detroit metropolitan area only. 853306-50-vol 84-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent supplies various forms 'of protection against fire, unlawful entry, and other hazards, by means of electric devices.' These devices are installed on.the property of its customers, designated in the record as subscribers, by the Respondent Alarms and other signals which these devices originate on ithe -property of the subscribers are relayed electrically to the central station of the Respondent over wires leased from the -Michigan Bell Telephone Company, the Western Union Telegraph Company and other companies using wire. Upon the receipt of any such alarm or signal on the supervisory apparatus of the central -station,, an investigation of the alarm or signal is made by the employees of the Respondent, by the fire or police department of the municipality, or, in certain cases, by both' Outside of central station areas, the Respondent also installs and maintains automatic alarm devices, both audible and visual, which are not connected with a central station, but which may be connected, by direct wire, to the local police or fire department. In every case, ownership of the electrical equipment installed on the premises of the subscriber by the Respondent is retained by it. The Respondent manufactures no articles for sale or shipment in interstate commerce, and performs no services outside of Michigan. None of the wires which the Respondent owns or uses under lease are located outside of the State or across State lines. The Respondent is a wholly owned subsidiary of the American District Tele- graph Company, a corporation organized under the laws of the State of New Jersey, designated herein as the New Jersey Company. The Western Union Telegraph Company, in turn, owns 714 percent of the New Jersey Company's capital stock All the officers of the Respondent are officers of the New Jersey Company, although that enterprise employs, in addition, officials not connected with the Respondent. The New Jersey Company, also, is the parent of other wholly owned subsidiary corporations, bearing the same or similar names, each of which supplies electrical protection services to customers within the state of its incorporation' One of those subsidiaries, the A D. T. Company, Inc, is a New York corporation, hereinafter designated as the New York Company. In the course of its-operation, the New York Company purchases and manufactures the electrical equipment used by the other companies in the system. Its sales of material, apparatus, and electrical devices to the Respondent and other companies in the system are made at cost. In 1947, the purchases of the Respondent outside of Michigan amounted to $127,281; of this amount $103,371 was involved in 8 The various services rendered include : (1) patrol supervision for watchmen and guards ; (2) an automatic sprinkler supervisory and water flow service, (3) an automatic fire con- trol for ventilating and air duct systems; (4) manual fire alarms; (5) burglary protection by means of electrified foil and contacts on the premises.of the subscriber, invisible photo- electric rays, electronic fields, a sound detection system for bank vaults, and a holdup alarm system ; and ( 6) industrial process and heating system supervision 4 Upon the receipt of certain alarms at the central station. information with respect to the alarm is communicated to the appropriate department of the municipality. It is this information which provides the basis for the independent or concurrent investigation of such alarms by the municipal department 5 There are approximately 63 such subsidiaries A copy of the registration form filed with the Securities and Exchange Commission by the Western Union Telegraph Company, which has been introduced in evidence, states that the New Jersey Company "has 63 direct or indirect subsidiaries ; all of which except 5 are 100% owned " Sweet's Catalogue Service, also introduced in evidence, contains the following description of A D. T system opera- tions : "The company operates Central Stations in 116 principal cities, which provide pro- tection services in some 350 municipalities to approximately 32,000 subscribers. The property values protected by A. D. T , of which industrial establishments represent the major portion , exceed twenty -two billion dollars." `, AMERICAN DISTRICT TELEGRAPH COMPANY 167 purchases from the New York Company. Certain specialized management func- tions of the Respondent, such as administrative, accounting, auditing, advertising, engineering, financial, and legal services are performed for it and for other sub- sidiaries of the New Jersey Company by the New York Company, at the expense of the parent corporation For those services, in 1947, the Respondent paid $98,775 to the New Jersey Company. Advertisements are' inserted by the New Jersey Company in magazines which have a circulation in business circles, over the signature of the "Controlled Com! panies of American District Telegraph Co " These advertisements extol the pro- tection services offered by the "A. D. T. System," describing it as the "only nation-wide organization specializing in electiic protection services." The New Jersey Company also publishes a monthly magazine, "The A. D T. Transmitter" -which is distributed to employees and subscribers throughout the country. The Respondent's gross investment in equipment, which it owns exclusively, amounted to more than $1,672,000, at the end of the 1947 calendar year. Its gross income for that period amount to $974,153, of which a major portion was received for services in the Detroit metropolitan area. In 1947, also, it pur- chased fabricated materials valued at $153,052; ' of this amount approximately $127,281, or 83 percent, was involved in purchases outside the State of Michigan. It paid approximately $79,038 to the Michigan Bell Telephone Company and $12,062 to the Western Union Telegraph Company for leased wire and other serv- ices in the same period. Its office in Detroit is rented from the Western Union Telegraph Company. The Respondent supplies its service to manufacturers,' retail and wholesale establishments, warehouses, office buildings, banks and other financial institu- tions, and other miscellaneous customers It services, also, certain premises owned and maintained by public utility corporations, such as the Detroit Street Railway System, the Michigan Consolidated Gas Company, the Detroit Edison Company, and two railroads. Of the gross income which it derived from the Detroit metropolitan area in 1947, approximately $268,134, or 38 percent, was received from manufacturers, and approximately $21,247, or 3 percent, was received from public utilities. The Respondent contends in the instant case, as in the representation case which preceded it,' that it is not engaged in commerce or activities which affect commerce within the meaning of the Act. Upon the entire record, however, it is apparent that the A. D. T. System is a single, closely interwoven enterprise, nation-wide in character, that the Respondent is an integral part of this coordi- nated operation, that a substantial proportion of its materials and equipment is purchased and shipped to it trocn vendors outside the State, and that it provides a variety of protection services essential to the operation of numerous enterprises engaged in activites which affect commerce. Upon the record then, it is clear, in spite of the contrary contention of the Respondent, that it is engaged in com- merce, and activities which affect commerce, within the meaning of the Act.' The undersigned so finds. 8 Approximately $11,799 of this amount was charged to various expense accounts About $141,253 was spent on material installed within the property of subscribers and within the central station, all of which was charged to a capital account 'Included in this group are plants of the General Motors Corporation , Chrysler Cor- poration , Packard Motor Car Company , and other large establishments, as well as the plants of a number of small manufacturers. 8 Matter of A. D. T. Company, 73 N. L. R. B. 265. 8 Cf. Polish National Alliance v . N. L R. B., 322 U. S 643, 647-648; Wickard v. Filbwrn, 317 U 8 111 , 125; Matter of Williams Dimond and Company, et at., 2 N. L. R. B. 859; 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. TIIE LABOR ORGANIZATION INVOLVED The International Brotherhood of Electrical Workers, affiliated with the Amer- ican Federation of Labor, is a labor organization which admits to membership electrical workers or employees engaged in: (a) the manufacture, assembling, construction, installation or erection, repair or maintenance of all materials, equipment, apparatus and appliances required in the production of electricity and its effects. (b) the operation, inspection and supervision of primary electrical equip ment, apparatus, appliances, or devices by which the power known as elec- tricity is generated, utilized and controlled. The organization maintains five general branches : outside and utility workers ; inside electrical workers ; cormnunications, voice, sound and vision transmis- sion and transference employees ; railroad electrical workers ; and electrical manufacturing employees The jurisdiction of these branches is defined, in gen- eral terms, in the constitution of the organization Local Union 58 of the Electrical Workers is an organization with jurisdiction over inside electrical work and inside electrical workers in the Detroit metropoli- tan area. Insotar as it is material in the instant case, this jurisdiction includes operators of electrical apparatus when generating, supplying or furnishing elec- tricity for other than distributing companies; inspectors; and fire and burglar alarm installers and repairmen. Its jurisdiction, in functional terms, covers the installation, construction, inspection, operation, maintenance and repair of all electrical work in isolated plants, and within the property lines of any given property. The organization admits to membership employees of the 1tespondent,30 and counsel concede its status as a labor organization within the meaning of the Act. - III. THE UNFAIR LABOR PRACTICES Facts A. The general course of events Upon a petition for the certification of representatives, filed in April of 1946 by the Electrical Workers, and after a hearing duly held, in October of that year, the Board, in April of 1947, issued a Decision and Direction of Election in which it overruled the contentions of the Respondent, already noted, with respect to its jurisdiction and found that a question of representation existed with respect to the employees involved in the instant case In accordance with a stipulation it further found that : All employees of the Employer in the Detroit Metropolitan area, excluding office and clerical employees, part-time employees, resident guards and all supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees, or effectively recom- mend such action . . . Matter of The TVm J Burns International Detective Agency, 47 N L R B 610, 49 N L. R B 385, 50 N L R B 219, 54 N I. It B 148'); Mattel of Acme Industrial Police, 58 N L R B 1342, Matter of Harold Jackson and C. F Fellows, d/b/a American Patrol Service, 69 N L R B. 1343 ; Matter of Hillary Young, d/b/a Young Patrol Service, 69 N L R B 1376 10 The parties have stipulated that Local 58, the organization, involved in the instant case, is the organization named as Local Union B--58 in the certification issued by the Board in the representation case, noted elsewhere, involving this Respondent. AMERICAN DISTRICT TELEGRAPH COMPANY 169 constituted a unit appropriate for the purposes of collective bargaining, and directed an election within that unit. The election was held on May 7, 1947. There were approximately 85 eligible voters.11 Of the 74 valid votes cast and counted, 49 were cast in favor of repre- sentation by the Electrical Workers and 25 were cast in opposition to such representation. There were 22 "challenged ballots,'' a number insufficient to affect the results of the election. On June 4, 1947, the Electrical Workers were certified by the Board as the exclusive representative of the employees in the aforesaid unit. The Electrical Workers had already requested a conference with representa- tives of the Respondent, on May 12, 1947, at which negotiations for a collective agreement might begin Within 2 days, the Respondent, by its attorney, replied as follows : . . . As you know the National Labor Relations Board has not yet certified your Union as the bargaining agent of the employees of this Com- pany in Detroit. We can give no definite or final reply to your letter until after the Board has issued its formal certification. However, in order that you may be under no misapprehension of the Com- pany's position, it should be stated that it is the present intention of the Company to test in the Courts the Board's decision in this case that the Company is engaged in activities affecting interstate commerce. As you know, there is only one way in which this test can be secured : by refusal on the part of the employer to recognize the Union, in consequence of which the Board may, if it desires, issue a complaint charging violation of Sec- tion 8 (5) of the National Labor Relations Act. The Board's order, if one is issued, directing the Company to bargain collectively with the certified Union may be reviewed upon application to the Circuit Court of Appeals. This procedure, we assume, will be followed in this instance. On July 18, 1947, after the issuance of the certification already noted, the Elec- trical Workers again requested a conference with representatives of the Re- spondent. Their letter was addressed to its attorney. Receipt of the letter was acknowledged at once; the Electrical Workers were informed that the attorney involved was out of the city, and a reply was promised upon his return. That reply, dated on the 31st of July, reads as follows : This is in reply to your letter of July 18, 1947, in which you request a meeting with -the management of the American District Telegraph Com- pany for the purposes of collective bargaining. It remains the policy of the Company not to recognize your Union until its legal responsibilities are finally settled. Therefore, on behalf of the Company we must refuse your request. The Electrical Workers made no further effort to secure a conference with representatives of the Respondent. On August 20, 1947, the original charge in the instant case was filed. B. The nature of the plant protection services offered by the Respondent Each of the various services offered by the Respondent in Detroit involves the automatic or manual transmission of electrical impulses, which originate upon "The eligibility list which was used in connection with the election lists 87 persons in the appropriate unit. Two of these were challenged at the polls. 12 The identity of the employees challenged, and their place of employment, does not appear in the record. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the premises of the subscriber, to the central station which the Respondent maintains . A general description of the services. therefore, seems essential in, connection with any effective evaluation of the issues involved in the instant case. t . The Respondent's system of patrol supervision for watchmen and guards rests,, in the main, :upon the maintenance of established relationships between the, Respondent and the watchmen in the employ of its subscribers.13 At pre- arranged periodic intervals, throughout a given tour of duty, watchmen are re-, quired to report to the central station by the manual operation of special elec- trical transmitters. If a watchman fails to signal at a designated transmitter within the appointed time, employees of the Respondent in the central station make an immediate effort to reach him by telephone to ascertain the cause of his failure, and to get him back on his patrol If the watchman cannot be reached by telephone, a guard is dispatched to find out why he did not signal and to bring about the resumption of his patrol, if possible" If a watchman sends an emer- gency signal on the electrical transmitter, or a manual fire alarm which may be installed at strategic points in connection with it, guards employed by the Respondent are dispatched to the premises of the subscriber and the municipal police or fire department is notified. The automatic sprinkler supervisory and water-flow service of the Respond- ent provides an automatic check on the operation of sprinkler systems main- tained by subscribers. Trouble conditions that might impair the efficiency of the system are detected and reported automatically to the central station, for immediate corrective action, by electrical devices sensitive to changes in the condition of the system, installed at strategic points. If the water in a gravity or pressure tank falls below a prescribed level, if the air pressure drops below a required minimum, if any control on the system is closed-accidentally, inadvertently or maliciously, if the water becomes too cold in winter, and if water flows in the system-whether caused by a fire, a serious leak or work being done on the system by employees of the subscriber-a signal is transmitted auto- matically to the central station," which immediately retransmits an alarm to the fire department, notifies the subscriber, and also notifies the fire insurance exchange. The aero automatic fire alarm service is a combined pneumatic and electrical system which may be used on property without any sprinkler protection, or, iii conjunction with sprinklers It is based on the principle that air expands when heated. Lengths of hollow copper tubing, attached at each end to an air 13 The Respondent makes a watchman's Handbook available to subscribers , for distribu- tion to the watchmen in the employ of the latter • it contains an elaborate set of instructions for watchmen , intended to assist them to make proper use of the A D T. equipment on the premises they are employed to guard 14 Typical reasons for a failure to report , as revealed upon investigation , may be: an involvement in some other duty, forgetfulness, the fact that the plant is in operation, inability to determine the time exactly, orders to refrain fiom the transmittal of a signal, lack of familiarity with the location of the transmitter, the presence of an obstruction at the transmitter , sleeping while on duty , absence from the plant, sickness or other disability, late reporting for work, inclement weather which prevented liccess to the transmitter, in- ability to enter the building, the presence of suspicious persons, or intoxication The rea- sons are listed in the order of their importance in a representative year On many occasions, however, watchmen may deny any failure to report, or refuse to give an excuse i5 Investigations conducted in a representative year revealed the following reasons for the receipt of supervisor y signals in connection with this service-in the order of,.their importance Closed gage valves, high or low air in dry pipe systems, high or low air in pres; sure tanks , low water in gravity tanks, high or low water in pressure tanks, low temperatures in gravity tanks, waterflow alarms and manual are alarms. AMERICAN DISTRICT TELEGRAPH COMPANY 171 expansion chamber or diaphragm are affixed to the•ceiling and walls on the prem- ises of the subscriber. The tube contains air, normally at atmospheric tem- perature and pressure. When the temperature rises at an abnormally rapid rate the expansion of the air in the tube actuates the diaphragm; the action of the diaphragm in turn, closes an electrical circuit and transmits an alarm to the central station Simultaneously, it sounds an alarm within the protected prop- erty and'registers the location of the fire on an.annunciator outside the building. Upon the receipt of a signal at the central station, again, the alarm is retrans- mitted to the fire department, and the subscriber and fire insurance exchange are notified. The Respondent provides several types of protection against burglary and other unlawful entry. One type, known as a "burglar alarm," involves the installation of electrical contacts on doors, windows and other accessible open- ings, the installation of electrified screens, and the installation of foil, on the windows These devices are connected by a circuit which is, in turn, con- nected to the central.station of the Respondent. They are "set" or placed in condition to transmit a signal when the subscriber's property is closed for the night. Any entry which involves a break in the installation, thereafter, trans- mits an alarm automatically to the central station. The Respondent's guards, and-in some cases-the police, are immediately dispatched to investigate the alarm and protect the premises. A second type of protection is the "invisible light ray," which involves the installation of sending and photoelectric re- ceiving apparatus in strategic indoor and outdoor areas The sending appa- ratus is used to project an infra-red beam across the protected area to the photoelectric receiver; interruption of the beam by any vehicle or intruder automatically transmits a signal to. the central station, which results in the dispatch of guards and police A third type is the "telapproach," which in- volves the installation of an electronic device to surround a safe with a field of electrical waves. The presence of any person in this area creates an un- balance in the system which sounds an automatic' alarm in the central station, with consequences which have already been noted. The Respondent's sound detection system for bank vaults involves the instal- lation of a predetermined number of microphones or detectors on the ceiling of the vault. Any attempt to force an entrance to the vault is registered and results in an alarm. The microphone system is supplemented, however, by the installation of contacts on vault doors and heat detectors which register any attempt to burn through the door with an electric torch. Upon the receipt of any alarm during a predetermined period, guards from the central station of the Respondent and police are dispatched to the premises. The hold-up system, already noted, involves the installation of hand buttons, foot rails or foot buttons at strategic locations which may be operated to transmit signals to the central station of the Respondent while following the instructions of the bandit without fear of danger because the call for help is sent without the ban- dit's knowledge. Assistance is immediately dispatched upon the receipt of any hold-up signal at the central station. The Respondent's industrial process and heating system service provides auto- matic electric supervision of high and low steam pressure in boilers; electrical devices automatically transmit a signal to the central station when the steam, pressure reaches a dangerously high or low point, and when attention is required. Other devices register any flame failure in automatic oil burners and shut off the oil supply automatically in any case of failure; a signal is also transmitted to the central station and serves to announce the need for action to eliminate, 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the possibility of oil damage or explosions due to the inoperative status of the burner. Still other devices, calculated to supervise room temperature, humidity, current supply and the operative condition of automatic stokers, transmit signals to the central station to denote abnormal conditions, and the subscriber is notified immediately to take any required protective measures. The automatic fire control for ventilating and air-duct systems involves a set of electrical devices installed to detect and report the spread of fire and smoke through the air ducts of air conditioning and ventilating systems. These devices give an alarm when fire breaks out within the system or anywhere on the premises. They may be used to give automatic notification of abnormal condi• tions to the engineer on the premises of the subscriber, to cut off electrical current for fans, to close dampers and fire doors automatically, and to report any hazardous condition, which requires immediate corrective action, to the central station. - The services offered by the Respondent are intended to supplement the pro- tection usually given by the police and the fire department. While these depart- ments are equipped to protect residential and business property from the hazards of fire and unlawful entry visible from the public streets and alleys, the equipment of the Respondent is available for installation throughout the property. It pro- vides complete protection for the property on -which it is installed even though the hazard which it is designed to detect may be invisible, as yet, on the high- way ; it makes detection possible, with respect to such hazards, before the policE or fire department could be alerted, and thus provides protection not afforded by the public services. Its principal purpose, in short, is to provide a method for the immediate detection of hazards to the property and the prompt transmission of any alarm to the public authority involved. C. The relationship between the Respondent and its subscribers The obligations of the Respondent with respect to its subscribers are established, in every case, by contract, and the forms of agreement in regular use by the company, which have been-received in evidence, are substantially similar in tenor, without regard to the type of service involved. The parties are identified, respectively, as the "Contractor" and the "Subscriber"; in its capacity as the contractor, the Respondent agrees to install and maintain a specific set of equip- ment on the premises of the subscriber, subject to the understanding that the equipment thus installed remains the personal property of the Respondent. By the use of this equipment, the Respondent agrees to perform a described service, including the transmission of information about any signals received to the subscriber or the proper public authority. In its turn, the subscriber agrees to pay a determined sum upon the execution of the agreement and further sums annually thereafter for a minimum period of 5 years . To facilitate the performance of the Respondent's obligation, the subscriber may be called upon to take certain action designed to minimize the hazard which is the subject of the agreement, or to provide the Respondent with certain information relative to its organization and methods of operation" The ie In contracts which relate to the Respondent's patrol supervision for watchmen and guards, the subscriber is required to provide a schedule of the routine which its watchmen will be required to observe in the transmission of signals The Respondent agrees to inves- tigate all failures of the watchmen to transmit a signal in accordance with the schedule- but the contract goes on to provide that "It is understood and agreed by and between the parties hereto that the subscriber 's watchman is neither an agent nor an employee of the Contractor and that the Contractor is not liable for any act, or failure to act, on the part of such watchman." AMERICAN DISTRICT TELEGRAPH COMPANY , 173 Respondent, together with its agents or assigns, is authorized to install, and maintain its equipment on the. premises of the subscriber, to inspect it, test it, repair it, and to alter it as required, at the cost of the subscriber. It is author- ized, also, to remove its equipment upon the termination of the agreement for any reason, without being subject to any obligation to repair or redecorate the premises of the subscriber. The Respondent is authorized to increase or decrease its annual charge at any time after the expiration of 1 year, on 60 days' notice, subject to the sub- scriber's right to cancel the contract if it is unwilling to pay an increased charge. The agreements provide for mutual rights of cancellation if the property to be' protected is destroyed or damaged to such a degree as to make the continuation of service impracticable. They provide the Respondent, also-with a further right to cancel if its central station or connecting equipment is destroyed, sub- stantially damaged, or unavailable The obligations of the Respondent with respect to maintenance are specifi- cally limited to the care of its own equipment. The parties, also agree that the Respondent is not an insurer, that the compensation received by it for the service to be rendered is based solely upon the value of the service, and that the liability of the Respondent, in the event of any failure to perform the service, resulting in a loss, is to be limited to a fixed sum payable as liquidated damages. All of the contracts received, except one, contain a clause which reads as follows : The Contractor assumes no liability for delay in installation of the equip- ment, or for interruption of service due to strikes , riots, floods, fires, acts of God or any cause beyond the control of the contractor , and will not be required to supply service to the Subscriber while interruption of service due to any such cause shall continue but will, in such event , give notice of the condition to the subscriber or his designated representative. The mailing of a registered letter shall conclusively establish that such advice has been given by the Contractor. The single exception , noted, contains a statement that the contractor assumes no liability for delays in installation due to strikes or other causes. The agreements conclude with conventional provisions to the effect that they are not assignable by the subscriber except upon the prior written consent of the Respondent, that they are not binding unless approved in writing by an executive officer of the Respondent , and that they are not subject to any verbal understanding by way of modification. D. The operation of the central station The central station of the Respondent is located in downtown Detroit. It contains the equipment on which the electrical signals and alarms are received. When such an alarm or signal is received, it is brought to the attention of the operators stationed in the room by a light, a bell, and in certain instances, 1 y a printed code signal recorded on tape. The central station also contains a trans- mitter which, through the dispatch of a code number, notifies the fire department of a fire alarm. Operators at the fire department, not associated with the Re- spondent, receive this signal and relay it to the fire engine companies which re- spond to the alarm. The receipt of any alarm by the fire department, however, is verified at the central station by a telephone call to the fire department operators. The station also maintains a direct telephone line to the police depart- ment dispatcher who puts any alarms on the air to the radio patrol. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When a fire alarm or some other automatic signal is received, an operator in the central station calls the supervisor who checks the alarm to make certain of its origin. When the nature of the signal indicates that a fire is involved, the alarm is' transmitted,to,the fire department and the receipt^of,it by the,department is verified. The subscriber is notified by telephone and a guard is dispatched to investigate the cause of the alarm, to reduce the loss and to protect the premises. If a watchman's signal is not received on schedule, an effort is made to telephone the watchman or some other person on the premises of the subscriber ; if the telephone is not answered, or if it is answered by some person other than the watchman, a guard is dispatched to investigate the situation. In the case of burglar alarms, the supervisor in the central station dispatches a guard to the premises." In some of these cases, one guard is sent and the police department is notified. In the case of bank alarms, or alarms which originate in bad neigh- borhoods or places subjected to recent robbery, two guards are sent. In addi- tion, the owner or person in charge of the property is notified of the alarm. E. The employees The business of the Respondent is conducted in three departments-an Oper- ating Department , which receives and investigates alarm signals and -makes minor adjustments to the equipment during investigations ; it Plant Department, separately situated , which installs , inspects and repairs equipment ; and a Com- mercial Department , composed of salesmen and clerical workers not involved in the instant case. On May 1, 1948, the Operating Department contained 37 employees , 26 guard- operators and 11 female operators." These employees are assigned to one of three 8-hour shifts : the number on any shift is determined by the volume of the activity anticipated in the period of time involved The department is under the general supervision of Henry W Halstead , the operating manager . The oper- ators and guard-operators , however , work under the immediate direction of service supervisors who assign them to particular tasks in the central station and send the guard-operators out on runs ; the supervisors have the authority to assign guard-operators to guard runs or to work as an operator in the central station, and vice versa .10 Female operators, however , are not sent out on guard runs. The Plant Department, on May 1, 1948 , was staffed by 39 employees-16 in- stallers , 12 inspectors , 6 night repairmen and 5 day repairmen =0 All are subject to the general supervision of John Summers , the city foreman; 21 the installers, however , are under the immediate supervision of a construction foreman and a 11 When a subscriber closes his premises in the evening, he is required to "set" his alarm. This is done by hand when the alarm is set, a signal, indicative of the fact,that gll,is.well is received in the central station. The failure of the central station to ieceive such a signal within a fixed time after the regular closing time of the subscriber may also be an occasion for investigation is The department also includes several office and clerical employees, supervisors and resident guards, not involved in the instant case 19 The guard force also includes a captain and it lieutenant who have the authority to reprimand or discipline guard-operators and responsibly to direct their work. 20 One of these is a part time employee He, together with certain supervisory and clerical employees, is not involved in the instant case 21 The latter, in addition to his responsibilities in connection with personnel, consults with subscribers, upon occasion, in regard fo the installation or modification of protective systems ,' he may also be called upon to confer with electrical contractors to discuss the wiring set-up required to permit the installation of protective devices on specific property. , AMERICAN DISTRICT TELEGRAPH COMPANY 175 subordinate supervisor, while the inspectors and repairmen are under the supervision of 2 maintenance supervisors. The Plant Department The installers are-requiied to install any class of service to which they may be assigned. They are given a description of the protection to be installed and are furnished with technical data as to the method of installation by the city fore- man or construction supervisor and are under the supervision of the latter during installations. They work on the Respondent's equipment only, on the sub- scribers' premises, and instruct subscribers on the proper care and methods of operation appropriate-to the system installed by them. Upon occasion they may to repair work, in cases of catastrophe or an emergency break-down. The inspectors, who are generally men of greater experience and skill,22-are rhvidecl in groups, according to the particular types of equipment required by the Respondent's various services. They make electrical tests, visual tests, signal tests and minor repairs, inspect all wires and equipment, replace defec- tive devices upon assignments received from a maintenance supervisor, and submit reports to the plant superintendent Their work also is done entirely on the premises of-subscribers and on the Respondent's equipment only. They may, upon occasion, be'dispatclied to investigate signals* recemved'in the central station, when they happen to be in the vicinity of the premises involved. The night repairmen 2' report for work at the central station and receive assignments from a dispatcher (a plant department supervisor) or service super- visor (an operating department supervisor), during the evening hours, to make permanent repairs to 'equipment. Their work, also, is done entirely on equip- ment owned by the Respondent and installed on the premises of subscribers. Night repairmen may be directed by the central station, upon occasion, to make investigations or guard runs if they happen to be in the vicinity of property from which a signal has been received; it is indicated, however, that they are asked to investigate burglar alarms only rarely 2} Some of them are armed. They fre- quently accompany a guard-operator engaged in the investigation of an alarm ; in some cases they go out to make repairs after a guard-operator has reported that he has searched the premises and cannot locate the trouble. The day repairmen are dispatched fioni the central station also, by a service supervisor or plant dispatcher, to make permanent repairs on equipment which has been reported in trouble by the subscriber, a night repairman, or a guard- operator. As in the case of other employees they work entirely on the premises of the subscriber, and may sometimes investigate alarms or make guard runs.26 The Operating Department The female operators, as noted, work exclusively at the central-station, where they are assigned to watch for alarms and to check the signals turned in by night watchmen in the employ of subscribers. If their inspection of a trans- 21 It was testified without dispute , however, that they are not required to possess skill equivalent to that of a journeyman electrician 23 These employees were also designated in the record , at times, as plant electricians and night -guard repairmen. 24 Employee Whitmore testified, in direct examination, that his usual instructions were Jo "look for trouble," and that he has never been instructed to search the premises for any intruder as part of his regular duty . He admitted , however, that he had captured a burglar on one occasion and that he had assisted in several other captures 25 Repairmen, generally , are men of greater experience and skill than installers ; their work is regarded as equivalent in complexity to that of inspectors. M DECISIONS OF NATIONAL LABOR RELATIONS -BOARD mitter tape reveals that a watchman has failed to report on schedule, they make out a report and an investigation is conducted to see why the watchman is delinquent. If a fire alarm or burglar alarm is received they call it to the attention of a supervisor for investigation. As noted, these individuals spend their entire time in the central station and are not dispatched on guard runs. The guard-operators in the Respondent's employ are uniformed ; they are licensed to carry revolvers in self-defense. Only one, however, is deputized. Although their principal duty is to investigate the cause of fire and burglar alarms on the premises of subscribers," the work involves, in addition, some periods of` time in the central station, at which they-may be called upon to assist the operators in checking the operation of burglar alarm devices, filing, answering the telephone, taking reports from outlying stations, and assisting service supervisors in the dispatch of other guard-operators or repairmen 2i Older and more experienced employees, usually, are called upon to spend a greater proportion of their time in the central station than would be required of newer and less experienced guard-operators.29 In connection with investigations, or "guard runs" as they are designated in the record, guard-operators, as noted, are dispatched from the central station in company cars. These may be regular passenger coupes or line trucks, painted red and marked "Emergency" which carry the name of the company 29 About 60 percent of the Respondent's subscribers leave keys to their premises with it; when such keys are available, guard-operators carry them on runs. Upon the completion of any run, the guard-operators return to the central station. They may be called upon occasionally to take over the actual guardianship of property, in the case of subscribers to the night watchman supervisory service, when the watchman is incapacitated or otherwise unable to complete his patrol. In addition, they may be called upon to guard the premises of a subscriber when the alarm system is, for any reason, inoperative and not amenable to emergency repair-as, for example, in the period after an actual fire. 2e Guard-operators and operators in the central station are required to observe certain rules designed to protect the central station against a possible criminal attack In this connection the Respondent has installed at its central station signal transmitters con- nected directly with police headquarters-and all employees in the central station are required to be familiar with these devices and to use them for the transmittal of an alarm if the security of the central station is breached The Respondent, in addition, has installed its own protective devices on the property occupied by its Plant Department ; signals which originate on the Plant Department premises may be the subject of inves- tigation in the same fashion as signals received from any subscriber . In this sense, and in this sense only, the employees of the Respondent may be said to guard the premises of their own employer; the record contains no evidence as to the number of occasions, if any, on which signals from the Plant Department have been received in the central station. 27 Four men classified as guard-operators usually do nothing aside from their work as operators; the others spend some of their time in the central station doing such work, but are sent to conduct investigations also. The amount of time spent by regular guard- operators in the central station, as compared to the amount of time they spend on inves- tigations, was a matter of vigorous dispute in the, instant case ; for reasons noted else- where in this report, however, the undersigned considers the evidence received in this connection immaterial, and will make no effort to resolve the conflict revealed by the record. 28 The record indicates that new employees are considered available for "simple" guard runs alone after a week or 10 days on the job At the time of the hearing, according to Halstead, eight guard-operators were still sufficiently inexperienced to be classed as "trainees" , in addition, the Respondent then employed six or seven guard-operators as "GI Trainees" in the Initial period of their employment. 29 Occasionally guard -operators may be called upon to use their own cars. The tools they use may be company tools in some instances, their own In others. AMERICAN DISTRICT TELEGRAPH COMPANY 177 In the main, however, it may be said that • the guard runs in which these employees participate involve a response to a signal received at the central station, an inspection of the premises to detect the presence of an intruder, a fire, or some other hazard, and the completion of minor or temporary repairs' to the equipment whenever the investigation reveals a need for such repair90 A detailed analysis of guard runs is available with respect to the burglar alarm service. Signals received in connection with this service may be classified as follows : 1. Early Openings. These occur when a subscriber opens his premises be- fore the regular opening hour of which the Respondent has been notified. In most cases, it would appear, the subscriber notifies the Respondent of an intention to open the premises early and no investigation is required. Guards are dispatched, however, when the records of the Respondent show that the subscriber did not call, or, if he did call, failed to satisfy the central station that he was the subscriber. 2. Irregular Openings. These are similar to early openings; the classi- fication is used, however, to refer to cases in which the premises are opened between the regular closing time and the regular opening time of which the Respondent has been advised. 3. Late Closings. These investigations are made necessary by the failure of the subscriber to close his premises properly and thus to put the alarm in operation. The protective devices of the Respondent are so adjusted that the closing of the alarm results in a signal at the central station, and if that signal is not received within 30 minutes after a stated closing time, rep- resentatives of the Respondent call to determine the reason. If the tele- phone investigation fails, a guard is dispatched. 4 Trouble Closings. These cases, also, represent a failure on the part of the subscriber to put his burglar alarm system in operation. They are dif- ferentiated from "late closings" by the fact that the failure to close the alarm is not, apparently, willful. They may be due to a negligent fault on the part of the subscriber, such as the failure to close a transom, a window or a door, or the failure to set a trap. The failure to close an alarm may also be due to equipment fault or damage. In cases of the latter type, an in- vestigation may require the services of a guard-operator and night repair- man as well. 5. Attack Alarms. This classification refers to instances in which investi- gation reveals actual unauthorized entry-by burglars, firemen and patrol- men, or others trying unlocked doors. 6. False Alarms. These cases involve the receipt of signals, otherwise unclassified, as to which investigation fails to reveal any unauthorized entry. Some are chargeable to the failure of the subscriber to use the system properly, others are chargeable to a fault in the equipment, and still others to trouble at the central station or outside equipment-such as the Telephone Company cables. Most of the alarms in this category, however, refer to cases in which the cause of the alarm is not determined. 7. Police Call Alarms. This classification refers to signals received in connection with the Respondent's hold-up protection system. In all such cases a guard is dispatched and the municipal police are notified. 80 In connection with the watchman 's supervisory service, guard runs are initiated by the absence of a signal instead of an alarm. Investigation is usually limited to a determina- tion of the reasons for the failure of the watchman to report. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. Miscellaneous Runs ' This classification refers to service tests ; investi- gations made at the request of the subscriber and courtesy cases. In the case of "early openings," -irregular openings," and "late closings" guard- operators are sent to investigate only if the subscriber has failed to inform the' central station by telephone , in advance , of his intention to open the premises or- keep them open- at some time not within the period throughout which they re-' main open under normal circumstances 31 In all such cases, the investigation is limited, primarily, to a determination by the guard-operator that the individual responsible for the opening of the premises or'the failure to close them is the subscriber or a person authorized by the subscriber to open the premises or keep- them open. Every other type of burglar alarm, with the exception of miscel- laneous runs-which may be classified, ultimately, as a trouble closing, attack alarm, false alarm, or police call alarm-involves an inspection of the premises at the outset, to determine whether an entrance has been made or attempted, or whether an intruder is present 32 In every investigation, where no intruder is discovered, and except for cases where the cause of alarm was known or became apparent on entry, the guard-operator is called upon "to examine all protection units carefully" and to determine the cause of the alarm. This may involve a detailed inspection of the equipment, or a test to determine whether the alarnx was caused by a fault on the part of the subscriber or by a mechanical failure. When such an investigation reveals a mechanical failure, the guard-operator is called upon to make any simple adjustment or emergency repair that mad be required to restore the service Guard-operators are instructed to make such minor repairs to the best of their ability and to call for help when unable to• complete the repair, or to make a temporary repair and write a work order for the services of a night or day repairman." Although the record gives no clear indication of the extent to which guard runs, may reveal the need for minor or emergency repairs by company guar d-operators, the actual amount of time involved in such iepail woik on particular runs appears to be-on most occasions-a minor proportion of the total tune involved in the guard-operators investigation All of the employees described in this report, with the exception of the female operators at the central station, have access to the premises of subscribers in connection with their work. All of them, with the exception of the female oper- ators, are bonded ; when employed, they are fingerprinted by the Police Depart- ment of the city, and if that department designates a new employee as unsuitable, 11 In the case of "late closings" also. guard-operators are dispatched if a telephone call by someone at the central station after the regular closing time of the subscriber fails to reveal a satisfactoi} reason for the subscriber ' s failure to close the premises 31 Employee Gruenfeldt , it witness for the General Counsel , testified that he has never been instructed to search the premises for an intnirler when dispatched on a "trouble closing" investigation , he stated that his experience in this type of case has revealed that the failure of the subscriber to close the system is usually due to fault or damage in the equipment His testunony with respect to the absence of instructions in regard to such a search was corroborated by that of others In cross-examination, however, he admitted that guard- operators "frequently ' arrive at the, piemises after the departure of the subscriber who has been unable to close his system ; that it is "possible" for an intruder to enter the pienuses while they are unprotected after the departure of the subscriber , and that "ADT" men on the premises of a subsciibcr must be constantly "on the alert" to detect the presence of intruders or the possibility of fire 33 Upon occasion , night iepan men may be dispatched , on "trouble closing" runs in par- ticular , to make the adjustment or repairs required AMERICAN DISTRICT TELEGRAPH COMPANY 179, the employee is not hired." All persons hired are required to pass a medical examination . While the installers , inspectors , and day repairmen perform their work, under normal circumstances , in the day-time hours, guard-operators and night repairmen ma y be called upon to enter the premises of a subscriber in the evening hours after the premises have been closed. On such occasions, of course, they have access to the property on the premises and to the records of the subscriber. -- The'employees of the Respondent . operate;under general instructions _applicable, to every subscriber ; they receive no special instructions with respect to their work at any particular plant or other property. Guard-operators are instructed to request identification from all persons found; on the premises of a subscriber . If the guard -operator is uncertain as to the identification of any person , or if grounds exist for the suspicion of any irregu, lat•ity, he is instructed to report at once to his supervisor . If burglars or unm authorized persons are found on the premises , guard-operators are instructed to detain them until they are identified adequately or taken into custody by the police. They are not authorized , however, to make arrests, file charges , or forcibly to detain any persons found on the premises. This is regarded as the responsi- bility of the police or the subscriber . Armed employees of the Respondent are instructed to use their revolvers , as noted, in self-defense only. In fire alarm investigations , guard-operators are required to ascertain the sec- tion of the property in which the alarm originated , to check the existence of any fire or dangerous heat condition , to direct the firemen to that fire area,if they have not been directed to it already , and to assist the subscriber in any reasonable way, at his request and direction , usually by preventing the entry of persons who have no business on the premises. If the alarm is false, an effort is made to determine the cause and to restore the service , if possible Investigations which involve the Respondent 's sprinkler supervision and waterfiow service also begin with a check to determine the section of the system which caused the alarm, and an effort to determine whether it was actually caused by some abnormal condi- tion or by another circumstance When the reason for the signal is discovered, the guard-operator is instructed to notify the subscriber or his representative; if there is no one on the premises, lie is instructed to notify the Respondent's service supervisor. Guard-operators are told that they are not to correct the condition , merely to report it and to reset the Respondent 's transmitter, if they can Guard -operators , also, are required to initiate reports with respect to any evidence of carelessness or misconduct on the part of the subscriber 's employees whicli they may discover in the course of an investigation The reports required in this connection may relate to some infraction of rules on the part of the subscriber's employees, or to a condition on the premises for which such em- ployees may have been responsible and which may involve a hazard to the property. Specifically , in the course of investigations related to the patrol su- pervision of watchmen, as noted , guard-operators may be required to report, such derelictions as intoxication , sleeping on the job , late reporting for duty, and absence from the premises . The information submitted by guard-operators in this connection is transmitted by the Respondent to the subscriber. Delin- e" The Respondent also investigates the previous employment record of every applicant Upon occasion, he may be asked to state the extent of his previous training or experience in electrical work. J80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quency on the part of employees other than watchmen, when revealed in the course of an investigation, is also reported by the Respondent to subscribers. Such reports may involve a notification to,the subscriber that its employees have failed to put the protection system of the Respondent in condition to operate when closing the premises, that they have left a hazardous condition unattended, or that employees of the subscriber have failed to notify the central station when equipment monitored by a protective device was to be tested or otherwise used. In cases of this type the Respondent usually requests that the employees respon- sible be instructed to take any necessary precaution called for by the circum- stances ; the subscriber is advised that such action is necessary in order to prevent unnecessary investigations and false alarms. It should be noted however, in this connection, that the employees of the Respondent are authorized only to report infractions and not to reprimand employees of the subscriber or give them orders. Guard-operators, for example, are instructed to inform the employees of the subscriber, in a friendly way, as to the existence of fire hazards or any other conditions. which should be reported,; they are not authorized, however, to require action to correct the condition.36 In patrol supervision which may reveal derelictions on the part of a watchman, the responsibility of the investigator is limited to a determination of the reason for the watchman's failure to report. If a watchman is incapacitated the guard- operator may be required to replace him; the record, however, establishes clearly that he is without authority to reprimand the watchman for any dereliction in which the latter may be involved. F. The relationship between the employees and the union The International constitution of the Electrical Workers provide for the admission to membership of employees within its jurisdiction upon their appli- cation ; 36 it provides , in addition , that the union's acceptance of any such application and its admission of a member "constitutes a contract" binding upon the member , his local and the Electrical Workers, to be considered effective, as well, between the new member and the other members of the union . Appli- cants for membership are required by the constitution to repeat and sign an obligation, which provides , inter alia, for an agreement on the part of the applicant "to conform to and abide by" the constitution and laws of the Elec- trical Workers and the locals of that organization. The obligation also requires, of every applicant, the statement that : I will faithfully further, by every means within my power, the purposes for which the I . B. E. W. is instituted. I will bear true allegiance to the I. B. E. W. and will never sacrifice its interests in any manner. The constitution of the Union contains a number of provisions, also, with respect to offenses and misconduct for which members may be subjected to discipline by the organization. These offenses, insofar as any description of them may be material here, include : the violation of any constitutional provision, and any violation of the bylaws , working agreements , or trade and working rules of a local ; any failure to file a charge, or to notify the officers of a local, upon the acquisition of knowledge as to the violation of any constitutional provision 85 The Respondent 's Manual for Guards contains the statement that "The function of A D T and yourself is to detect and report abnormal conditions . . not to correct them " ae In the case of applicants indebted to another local or suspended by another local, the consent of the International secretary must he first obtained, and the local to which the applicant previously belonged must be consulted. AMERICAN DISTRICT TELEGRAPH COMPANY 181 or of the bylaws or rules of the local by another member ; the publication or circu- lation among the membership of false reports or misrepresentation ; the com- munication, to a public official or others, of untrue statements or misrepresenta- tion with respect to a local , its officers or representatives, or with respect to officials of the Electrical Workers ; any attempt to create dissatisfaction or dis- sension among the members or among local unions within the organization; any work in the interest of 'an organization or cause which is detrimental to the union or opposed by it; any slander or other wrong involving a union member, by any willful act ; any communication with respect to the business of a local to persons not entitled to such knowledge ; and any attendance or participation at gatherings outside of the organization , at which the affairs of a local are discussed. Other offenses listed in the constitution, of particular interest here, include : . . . failure to install or do electrical work in a safe, workmanlike manner, or leaving work in a condition that may endanger the lives or property of others , or proving unable or unfit mentally , to learn properly the electrical trade. . . . causing a stoppage of work because of any alleged grievance or dispute without having consent of the L. U. or its proper officers. . . . working for any individual or company declared in difficulty with a L. U. or the I. B. E. W., in accordance with this Constitution. Members convicted of any offense may be fined , suspended, expelled or removed from their place of employment. A local of the Electrical Workers is authorized under the constitution, to make its own bylaws and working rules, if not in "conflict" with the organic law of the international . The constitution of the international organization, and the rules contained therein, are considered as a part of all the local bylaws , and are considered "absolutely binding" on each and every local union member. Agree- ments between any local and an employer must recognize that the local is a part of the Electrical Workers organization and that a violation or annulment of the agreement will serve to annul any other agreements executed by the employer and another local of the organization . The locals are instructed , as we have seen, not to allow their members to work for any employer involved in a "diffi- culty" with another local of the Electrical Workers, if the International presi- dent has recognized the difficulty. Concurrently, however, the locals, are for- bidden to cause or allow a stoppage of work in any controversy of a general nature without the consent of the International president. The authority to interpret, apply and enforce the provisions of the constitution to which reference has been made rests with the International Executive Council of the Electrical Workers, which is given the power to try any local union or member charged with an injury to the interests of the organization by an action violative of its laws or the obligation required of the members. The bylaws of the local involved in the present case, however, confirm the parallel authority of its own executive board to try any member accused of a violation of the Electrical Workers' constitution, the local bylaws, the working rules of the organization , or of any agreement to which the local is a party, and to fix the penalty for any violation found. In addition , its business manager is authorized to remove any member from a shop or job ( when not in violation of any agreement) for a failure to comply with the laws and working rules of the local, or when he decides the best interest of the local requires the removal. The record establishes that some members of the local, which employees of the Respondent have chosen as their representative , are employed ,by A. D. T. sub- 853396-50-vol. 84-13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribers. Other members of the union, in the employ of electrical contractors, have performed a substantial amount of electrical work, within the last 2 years, incidental of the installation of the Respondent's service. The electrical con- tractors involved in such work are parties to an agreement with the local involved in the present case, by virtue of their membership in the Detroit Electrical Con- tractors' Association, Inc -the Detroit chapter of the National Electrical Con- tractors' Association By the terms of that agreement, inter alga, the local reserves the right to discipline its members for any violation of its laws, rules and agreements. The agreement also contains clauses which provide that: . . . this agreement does not deny the right of the Union or its repre- sentatives, to render assistance to other labor organizations by removal of its members from jobs when necessary, and when the Union or its proper repre- sentatives decide to do so, but no such removal shall take place until notice is first given to the Employer involved, or to such Employers' duly authorized representatives There shall be no sympathetic strike due to jurisdictional disputes without the approval of the International Office of the Union. . . . Local Union No B-58, is a part of the International Brotherhood of Electrical Workers and any violation or annulment of working rules or agreement of any other local union of the I B. E W.; or the sub-letting, assigning, or the transfer of any work in connection with electrical work to any person, firm or corporation not fair to the I. B. E. W.; or the employ- ment of other than I. B E W members on any electrical work in the juris- diction of this or any other such Local Union by the Employer, will be sufficient cause for cancellation of this agreement, after the facts have been determined by the International Office of the Union. The record contains no evidence, however. as to the application or enforcement of these provisions in the Detroit metropolitan area. Conclusions A. The issue The statutory obligation of any employer to bargain with a labor organization is dependent upon the right of the labor organization involved to claim repre- sentative status, on behalf of the employees in an appropriate unit, at the time of its request that negotiations begin. This fundamental concept-the validity of which has not been impaired by any recent change in the law-is not now in dispute. The General Counsel, in reliance upon it, argues at the outset that the obvious refusal of the Respondent to recognize the Electrical Workers, in spite of the certification issued by the Board, involved an unfair labor practice on the part of the company under Section 8 (5) of the original Act, wthout regard to any conclusions which might be reached as to the obligations of the Respondent under the statute as amended. And upon the record, it does seem clear-in spite of the Respondent's formal denial-that the union represented a majority of the Respondent's employees, in a unit appropriate under the statute as it stood before the amendments noted, that the certification of the union by the Board was valid, and that the Respondent-in the face of that certification- refused to bargain with the union, in the period before the effective date of the amendments to the Act 34 The facts are not disputed. They establish a refusal "The Respondent's assertion that the certification ought not to be given effect and that it has no obligation with respect to the union under the Act, on the ground that it is not engaged in commerce or business which affects commerce , has been the subject of discussion elsewhere in this report. AMERICAN DISTRICT TELEGRAPH COMPANY 183 to bargain on the part of the Respondent which fell within the proscription of the original Act ; the undersigned so finds. This conclusion, however, is not dispositive of the case .3' For the Respondent goes on to contend that the Act, as amended, eliminates any prior right the Electrical Workers may have had to represent employees of the type involved in the present case, and-in the alternative-that it circumscribes the power of the Boald to declare any unit appropriate for the purposes of a collective bar- gain, in such a fashion as to render inappropriate the unit for which the Electrical Workers have been certified Both of these contentions are denied by the General Counsel. If either of them is accepted, it is patent that the remedial purpose of the Act would not be served by an order based upon the Respondent's antecedent refusal to bargain30 Upon this posture of the case, it is essential then to con- sider the effect, if any, of the recent amendments to the Act upon the Respond- ent's obligation to bargain. Section 9 (b) of the Act, which defines the authority of the Board to fix the unit appropriate for the purposes of a collective bargain, provides, insofar as it is material, that: The Board shall decide in each case whether, in order to assure to em- ployees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not . . . (3) decide that any unit is appropriate for such purposes 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; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organiza- tion admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards. And the General Counsel makes the contention that the obligations of the Re- spondent with respect to the union have not been affected by this provision of the amended statute It is argued, in substance, that the employees who work in the unit for which the. Electrical Workers have been certified are not "guards" within the meaning of the Act, that the union is still entitled to act as their exclusive representative, and that the unit covered by the certification is still appropriate for the purpose of a collective bargain.40 The Respondent asserts, with equal vigor, that its employees, in the certified unit, are "guards" in the -m The General Counsel's representative did not suggest a remedial order on the basis of considerations appropriate only to the conduct of the Respondent from the date of its origi- nal refusal to recognize the union to the effective date of the statute as amended. 39 Matter of City National Bank and Trust Company of Chicago, et at., 76 N. L. R B 213; Matter of Westinghouse Electric Corporation, 75 N. L. R B 1. *o In the oral argument at the close of the case, before the undersigned, a question was raised as to whether Section 103 of the statute, as amended, ought to be construed as effec- tive to preserve the obligation of the Respondent to bargain with the Electrical Workers, as the representative of the employees in the certified unit, regardless of any conclusion which might be reached with respect to their status as guards, on the theory that a unit de- termination and certification, 'made within a year before the effective date of the statute as amended, which has never been honored by an employer, should be considered valid, for all purposes, until the expiration of 1 year after the employer has honored It. The only Board case of interest in this connection would indicate a negative answer to be proper. Matter of City National Bank and Trust Company, 76 N L R B 213 In the light of the decision recommended herein, however, the undersmgped finds it unnecessary to determine this question. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statutory sense, and that the Electrical Workers cannot be permitted to repre-, sent them, since it admits to membership employees other than guards, and since If is affiliated, directly and indirectly, with labor organizations which admit to membership employees other than guards." In the alternative, it is argued that some of its employees, at least, are "guards" within the meaning of the Act, and that these may not be included in a single unit with other employees for the purposes of a collective bargain, if it is determined that such other employees are not "guards" within the meaning of the statute as amended. These con- tentions pose the issue presented for determination. B. The analysis Two arguments are presented, in this case, on behalf of the General Counsel. Basically, it is contended that the employees cannot be considered guards within the meaning of the Act, because of the fact that they are not employed to guard the premises of their own employer. Alternatively, it is argued that they are not guards within the meaning of the Act-even if some of their duties are held to fall within the description of guard work-because of the fact that more than half of their time on the job is spent in tasks which cannot be described as within the reach of the statutory definition. The first proposition, if established, would clearly be determinative. The issues were litigated, however, in a frame of reference dictated by the second contention. It is to that contention, therefore, that our attention must initially turn. The percentage test of guard status The General Counsel argued, in connection with this aspect of the matter, that the instant case should be decided on the basis of the principles enunciated and first explained in the Radio Corporation case," and reaffirmed in several other decisions of the Board 43 In that case it was held that "employees who devote much less than half of their working time to duties as watchmen and the rest of their working time to maintenance duties" are not "employed" as "guards" within the meaning of Section 9 (b) (3) of the statute as amended; it was decided that such employees ought to be permitted to act in concert with other employees in a production and maintenance unit found appropriate for the purposes of a representation election. The Board's decision was based upon the conclusion that an individual ought to be considered "employed as a guard" only if his duties as a guard were found to constitute a dominant aspect, and not merely an incidental feature, of his total work pattern. The General Counsel, conceding for the sake of argument, as noted, that employees of the Respondent may perform "guard" work at times, contends that such work is merely an inci- dental feature of their employment. The Respondent has attacked the application of this principle by adopting the rationale of the dissent in the cited case ; it is argued that the congressional desire to eliminate any possible conflicts in the loyalty of individuals employed as guards, throughout the period in which they perform guard work, ought not to be ignored because of the fact that other duties assigned to them may involve an assignment where no conflicts of loyalty can exist. In particular, however- 41 Cf. Matter of Schenley Distilleries, Inc., 77 N. L. R. B. 468. 42 Matter of Radio Corporation of America, 76 N. L. It. B. 826. Cf. Matter of Morowebb Cotton Mills Company, 75 N. L. It. B. 987; Matter of Carolina Metal Products, Inc., 76 N. L. R. B. 644. 43 Matter of Steelweld Equipment Company, Inc., 76 N. L. R. B. 831. AMERICAN DISTRICT TELEGRAPH COMPANY 185 and with specific application to the present case-counsel argues that all of the employees involved constitute an "integrated group," none of whom may be disassociated from guard work ; it is argued that the Respondent's business in- volves a protection service, and that each of the employees in the certified unit contributes to the basic objectives of that service, the protection of life and property. It is argued, also, that the proper test to be employed in connection with the application of the statute ought to be the existence of "any substantial conflict" of interest, between employees charged with responsibility for the pro- tection of property and the safety of persons on the premises of an employer and other employees. Counsel makes the contention that employees of the Respond- ent perform a protective function of the highest importance whenever they per- form "guard" work, that any possible conflict of loyalty which might exist in that connection would be fraught with serious consequences, and that the em- ployees, therefore, should be regarded as guards, ineligible for representation by a labor organization which might also represent the employees of a subscriber, regardless of any characterization which might be applied to the assignments of such employees which do not involve "guard" work directly. While there is much of merit in the Respondent's contention, the undersigned finds no basis for it insofar as it applies to the plant department employees. The undersigned is of the opinion that they cannot be considered guards upon any view of the facts. Although it may be true, as the record shows, that inspectors and repairmen may be called upon to make guard runs, it is obvious that they are not "employed" for that purpose, essentially, and that such assignments represent merely an "incidental feature" of their employment" Upon the as- sumption that central station operators and guard-operators function predomi- nantly as "guards" within the meaning of the Act, the Respondent seeks to equate the employees of its plant department with them by describing the functions of all as part of an integrated service. The contention goes too far; every em- ployee, in our modern industrial society, is engaged in functions which achieve significance only by virtue of their integration with some other service or pro- ductive operation. The undersigned finds it difficult to conceive of installers, inspectors, and repairmen as employees subject to possible conflicts of loyalty in the sense that aroused congressional concern. It is not the mere fact that conflicts of loyalty are possible which makes a man a "guard"; it is the fact that his loyalties, when put to the test by possible divergehcies between the interests of his fellow employees and the interests of his employer, might develop internal conflict which would jeopardize the "public interest" in such a direct and im- mediate fashion as to warrant preventive, anticipatory measures. Any union- ized worker risks a possible conflict of loyalty, to a degree, if his work requires him to process "struck" work or to cross a picket line, and particularly if the dispute which thus affects his employment involves fellow unionists. Congress, however, did not consider it necessary to deal with all such problems on a preventive, anticipatory basis. It handled the problem of "divided loyalty" in the case of supervisors, guards, and time-study employees by the use of different rules as to the terms on which they might invoke the benefits of the Act. It handled the problem in the case of rank and file employees by its interdiction of the secondary boycott. The Act is not intended to meet every problem in the field of industrial relations, or to meet the problems with which it deals by a "Matter of American Protection Company, Case No. 9-R-2304, decided May 26, 1948 (unreported) ; Matter of American District Telegraph Company of San Francisco, 78 N L. It. B. 150. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD single rule, and the undersigned finds no violence done to congressional intent by the finding that Congress was concerned with "divided loyalty," but that it did not define a "guard" in such a way as to deal with "divided loyalty" in the type of employee with which we are now concerned. With respect to employees of the operating department, however, and again upon the assumption, for the purposes of argument, that they do some "guard" work in the course of their employment-the undersigned concurs in the con- tention of counsel that the "percentage" test of the Board has no application here. The General Counsel introduced considerable testimony to show that central station operators were engaged in routine clerical work and performed no actual investigations ; that certain guard-operators spent a significant or pre- ponderant portion of their working time in the central station, at tasks sub- stantially similar to those assigned regular operators, devoting only a minor percentage of their time to actual investigations ; and that other guard-operators, whose time at work was devoted substantially to the conduct of investigations, spent a preponderant portion of the time involved in that activity traveling to the point at which a signal originated, searching for the mechanical or electrical fault or damage which ,had caused the signal, making minor or emergency repairs as required, and returning to the central station.4$ It was argued, on behalf of the General Counsel, that activities of the type described did not involve "guard" work-whatever might be said of the other work done by guard-operators- and that the rationale of the Radio Corpoi ation case was, therefore, applicable in the instant matter. The witnesses offered by the General Counsel, however, made no reference in specific terms to the time required to check the presence of unauthorized per- sons on the premises of a subscriber ,'° and did not purport to analyze or evaluate the time involved in searches for intruders on the property of subscribers, in the case of guard runs which were not initiated for a known cause, or as to which the cause did not become apparent on entry." They made no reference to the activity of central station operators and guard-operators in checking the reasons for the failure of watchmen to report on schedule at their posts on the property 41 The amount of time spent on the property of subscribers, by regular guard-operators, searching for the source of a signal and making minor or emergency iepaiis, and the relationship of that time to the entire period of time they spent on the premises, was the subject of a vigorous conflict in the evidence. for the reasons now to -be noted, however, the undersigned considers the evidence in this connection immaterial, and will make no effort to resolve the conflicts apparent in the record. 46 Employees of the Respondent investigated 2,575 early openings, 39,692 irregular openings, and 28,656 late closings in 1947 Most of these were investigated by telephone ; with respect to 5,765 of them, however, guards were sent to make the investigation In 5,345 cases one guard was sent, in 112 cases two guards were sent, and in 308 cases the police were notified of the signal. Each of these cases involved a check to determine the identity of the persons found on the premises, and their right to be there. 47 In 1947, the Respondent received 368 burglar alarms which proved, upon investigation, to be indicative of an actual threat to the property of subscribers. These are classified in its record as "Police Calls" and "Attack Alarms " In addition, employees of the Respond- ent investigated 12,273 signals classified as "Trouble Closings" and 10,756 signals in the category of "False Alarms." The vast majority of these signals were ultimately found to be due to some delinquency on the part of the subsciiber, or to a fault or damage in the Respondent's equipment It is clear, however, in these cases, that the cause of alarm was not known when the investigation was initiated, and that each investigation involved a search for intruders before the investigator turned his attention to a search for the source of the signal. AMERICAN DISTRICT TELEGRAPH COMPANY 187 of subscribers 48 And they made no reference to the responsibility of guard- operators with respect to the investigation of fire and waterflow alarms.49 Whatever the situation may be as to the division of the work in the Respond- ent's operating department, it is patent that each and every function of the employees formed an effective part of the protection offered by the Respondent with respect to the property of subscribers and the safety of persons on that property; they are directly related to the operation of the Respondent's pro- tective service. The undersigned finds himself unable to accept the contention that operators or guard-operators are engaged, at any time, in work so divorced from this principal objective as to be essentially different in its nature. While it may be true that a vast majority of guard runs do not result in the apprehen- sion of an intruder, or in the detection of an actual hazard to life or property, it is also true that such guard runs may require the investigators of the Respond- ent to check the authority of persons found upon the premises of the subscribers and that they may, in addition, call for action necessary to reestablish the readiness of the service to detect an actual hazard, should it arise. These functions, clearly, cannot be disassociated from the actual detection and reporting of hazards which the Respondent's service is established to check. It is in this respect that the instant case is significantly different from the Rcittio Corporation case and the other, related, decisions of the Board to which reference has been made ; in each of the cases cited the responsibility of the employees involved, in the period during which they were not engaged in "guard" work, had no direct relationship to that work. That, as noted, is not the case here. Upon the entire record, therefore, the undersigned places no reliance upon the "percentage" test, in determining whether employees of the Respondent-and in particular those employed in the operating department- are "guards" within the meaning of the statute as amended The contentions of the General Counsel in this connection, except as noted, are rejected. Employment to guard the premises of another employer as determinative of guard status The undersigned now turns to the basic contention of the parties with respect to the application of Section 9 (b) (3) to the employees; and upon the entire "The records of the Respondent reveal that in 1947 its employees investigated 10,986 delinquencies on the part of watchmen In 2,310 cases the Respondent received a telephone call from the subscriber or the watchman , in 7,758 cases operators or guard-operators in the central station telephoned the subscriber , and in 918 cases a guard-operator was dispatched to make the investigation. The record, in toto, ieveals 360 cases in which the ability of the watchman to watch had been impaiied, 4,167 cases in which the delinquency or disability of the watchman had affected his ability or duty to report, 2,007 cases in which the watchman s involvement in other duty had affected his ability or duty to report, and 4,450-miscellaneous cases It seems clear that most of the cases involved a situation in which the investigation of the Respondent revealed an impairment of the watchman's service to his employer and made possible corrective action designed to restoie the effective- ness of the watchman's service 49 In 1947, the guard-operators of the Respondent investigated 84 manual fire alarms, of which only 5 were established as false alarms after investigation ; automatic fire alarms were investigated on 281 occasions Sprinkler system supervisory signals led to 6,615 investigations, of which 196 revealed an actual fire or leakage in the system ; all but 2,451 of the other investigations, however, revealed conditions which required correction, before the efficient operation of the system could be assured in the case of an actual fire. It seems clear that the woi k performed by employees of, the Respondent in this connection involved the enforcement of rules to protect property, or the safety of persons on the protected property Cf Matter of Douglas Aircraft Company, 79, N. L R B 752, which describes the duties of firemen in an industrial plant. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record he is constrained to reject the contention of the Respondent's counsel that its employees in the certified unit are "guards " within the literal meaning of that term as defined in the Act . The contentions of the General Counsel, to the contrary effect, find persuasive support in the Board's decision with respect to the Matter of Brink's, Incorporated ; 60 and the undersigned finds the rationale of that decision determinative here. 1. The Rationale of the Brink's Decision, The legislative history of the Act, insofar as it relates to the provision with which we are now concerned, is replete with references to congressional con- cern about the representation of "plant" guards, as that term is usually under- stoodo1 Senator Taft, a principal author and supporter of the legislation, de- scribed the congressional conferees , who drafted the language with which we are concerned , as "impressed " \w:th the "reasoning" of the Court of Appeals for the Sixth Circuit in the Joncs and Laughlin case, which they compared with the language of the Supreme Court in that case, and the related Atkins case, on appeal.52 Each of these cases involved only "plant" guards-and the legislative history, in this connection , establishes clearly that the congressional conferees were impelled to impose the present restriction with respect to the organization and representation of guards by virtue of their concern about the impact of the Supreme Court decisions upon the activity of interested organizations in that field. In particular , it is patent that the Congress was concerned with the possibility that, if "plant" guards were permitted to bargain collectively, in units which included production workers in the employ of their own em- ployer, loyalty to fellow ' union members might conflict with the obligation of the guard to report any dereliction of duty or the violation of a rule on the part of a fellow employee , to their common employer. The preoccupation of Congress with the problem of "divided loyalty" as it involved "plant" guards is manifest in the language employed to describe a guard. Although such employees are described as employed to enforce rules against employees and other persons, the rules to which reference is made are rules intended to protect the property of the employer, or to protect the safety of persons on the employer 's premises . The undersigned construes the language used, as the Board did in the Brink's case, to indicate that Congress conceived of guards as persons employed to enforce rules against employees and other persons with access to the premises or property of their own employer 63 The 50 77 N L R. B 1182 si The work of a plant guard, in the conventional sense, is usually understood to involve the patrol of a fixed post on the property of an employer, although it may involve a periodic rotation of posts among the members of the guard staff at the plant where the particular posts are located. 62 N. L R. B v Jones and Laughlin Steel Corp., 154 F. (2d) 932 (C A 6), 331 U. S 416; N. L. R B. v. Atkins and Co , 155 P. (2d) 567 (C. A 7), 331 U. S 398 N The House Bill, H. R 3020, as reported and adopted by that legislative chamber, supports the inference that Congress was only concerned with the status of guards in this limited sense. It defined- them as supervisors, and excluded them from the benefits of the statute, in the following language : The term "supervisor" means any individual-who is employed in . . . police . . . matters . . . or who is employed to act in other respects for the employer in dealing with other individuals employed by the employer, or who is employed to secure and furnish to the employer information to be used by the employer in connection with any of the foregoing. ( Emphasis supplied The language of the bill is cast in terms which indicate clearly that its draftsmen were concerned with the problems which might develop among the "employees" of a common employer. 0 AMERICAN DISTRICT TELEGRAPH COMPANY 189 legislative history contains no reference to persons employed to guard the prop- erty of the customers of their employer 64 2. The applicability of the Brink's decision Counsel for the Respondent, in a well-articulated argument, seeks to dis- tinguish the Brink's case, and contends that it has no application here. It is argued, in the first place, that the employees involved in the Brink's case worked in armored cars, guarding portable valuables, and that they did not guard plants ; the employees of the Respondent, in the unit with which we are concerned, clearly do guard plants. It is argued, further, that the employees involved in the Brink's case had no "monitorial" function and served only as the custodians of the property temporarily in their case. Certain employees of the Respondent, its "guard-operators" in particular, obviously "monitor" watchmen in the employ of subscribers." In conclusion, it is contended that the employees involved in the Brink's case were not empowered or obliged to enforce rules against the employees of a customer or against other persons with access to the customer's plant. It is clear that guard-operators in the employ of the Respondent do play a part in the 'enforcement of rules to protect the property of subscribers and to protect the safety of persons on the premises of subscribers, with respect to employees of the subscriber and other persons with access to the subscriber's plant 66 Upon the record thus construed, the Respondent argues that the Brink's decision is not determinative. Alternatively, the Respondent offers, as decisive, the decision of the Board in the Matter of Young Patrol Service; n in that case the Board, sua sponte, held the employees of a sole proprietorship, which provided civilian watchmen and guards, on fixed assignment, for ships, terminals, docks, and piers located on the waterfront of San Francisco Bay and its tributaries, to be "guards" within 51 The Statement of the Managers on the part of the House with reference to this legis- lation includes the statement that : The conference agreement . . . provides that the Board cannot decide that any unit is appropriate for collective bargaining if it includes, together with other em- ployees, an individual employed as a guard to enforce against employees and other persons rules to protect property belonging to the employer or for which the employer is responsible, or to protect the safety of persons on the employer's premises. House Conference Report, No. 510, 80th Congress, First Session, 1947, pp. 47-48. The reference to property for which the employer is responsible is not explained It does not appear in the Act as passed, or in any of the antecedent bills, or in any other state- ment on behalf of the House in this connection In the light of the statutory language and its legislative history, the undersigned concludes, as did the Board, that it would be' unreasonable to infer, on the basis of this isolated reference, that responsible members of the House intended to hold employees of the type involved here within the limitations in regard to representation established by the statute. a: while it may be true, as the General Counsel contends, that a monitor is defined as one who "admonishes" others, especially in "reproof" or "caution," and while it may he true that guard-operators in the employ of the Respondent are instructed not to reprimand or admonish the employees of a subscriber with whom they may establish contact in the course of their work, the undersigned is mindful of the admonition that "one of the surest indexes of a mature and developed jurisprudence [is] not to make a fortress out of a dic- tionary but to remember that statutes always have some purpose to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning " Cabell v. Markham, 148 F. (2d) 737, 739 (C A 2) Upon the entire record, the undersigned is satisfied that the "monitorial" functions of a modern plant guard do not involve any obli- gation, necessarily, to reprimand or admonish other employees 58 Essentially this contention is a recapitulation of the contention that employees of the Respondent guard "plants" in addition to portable property. 67 75 N L. R B. 404. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of the statute as amended, and thus to be ineligible for representation by a union which admitted to membership employees other than guards. Al- though Hillary Young, the employer involved, was engaged in the provision of plant protection, under contract, with respect to the property of others, the Board attached no significance to this fact ; its decision was based upon the conclusion that the employees were engaged in the performance of "monitorial" duties with respect to the protection of property against fire-and theft, which involved the application and enforcement of rules against "employees" and other persons. The decision has not been cited, distinguished, or overruled by the Board ; the Respondent argues that it is apposite here. The contentions of the Respondent in this connection are presented with per- suasive power. The undersigned, however, is constrained to find them to be with- out merit. While it may be true that the Board's decision in the Young case was grounded in the fact that Young's employees performed a "monitorial" duty," and while it may be true that the work of the employees involved in the Brink's case was primarily "custodial" in its essential nature, an analysis of the statute fails to reveal any basis for the contention that this distinction is crucial, and that the Young case, therefore, is the more persuasive precedent. The Board has held, sua sponte, in a recent case 5° that nonmonitorial watchmen, who are not uniformed, armed or deputized, and who patrol the plant, report through an A. D. T. clock system, and enforce any rules designed to prevent a fire, theft or other damage to the property of their employer, are within the statutory definition of individuals barred from inclusion in a collective bargaining unit with other employees.60 Whatever a desirable result may be with respect to the appli- cation of Section 9 (b) (3) to employees without monitorial responsibility," it is clear that the statute, as it stands, makes no distinction of the type suggested by the respondent, and that the rationale of the Brink's decision cannot be found in the fact that the employees involved therein performed a custodial or non- monitorial service. While the Brink's decision and the Young case both involve the application of the statute to individuals performing a protective service for customers of their own employer, the undersigned is of the opinion that a basic distinction in these cases may be found in the fact that Young's employees were called upon to fulfill a fixed assignment, while those in the employ of Brink's, Incorporated, provide an itinerant service on call 82 It seems obvious to the undersigned that persons who fulfill a fixed assignment, in connection with the sale of a protective service for the property of customers of their own employer, would have a greater opportunity 58 Cf Matter of Macungie Silk Company, 75 N L R B 741 , and Matter of Stonewall Cotton Mills, 75 N L R B 762, in which the Board found the authority of watchmen to quell "disturbances" and "disorders" at ahe plant a determinative factor in fixing their status as guards 59 Matter of C P. Hill and Company, Ire, 76 N. L R B 158. 60 See also Matter of Westinghouse Electric Corporation, 78 N L R B 10 ei See the statement made on behalf of the Board by Chairman Paul M Herzog to the Joint Congressional Committee on Labor-Management Relations, June 11, 1948 62Cf Matter of Williams Dimond and Company, et al, 2 N. L R B 859, 864 The Board in that case found that steady and extra steadv watchmen employed directly by the companies whose property, they were assigned to protect constituted, for each com- pany, a unit appropriate for the purposes of a collective bargain, but went on to exclude, from the units found appropriate, extra watchmen fuuiished by the Pinkerton National Detective Agency and Patrol Service It was noted that the extra watchmen were not employed directly by the companies whose property they were assigned to protect, and that they "rotated" among the docks, the Boaid concluded that steady and extra steady watchmen were distinguishable from extra watchmen by reason of the differences in their duties, tenure, and manner of employment AMERICAN DISTRICT TELEGRAPH COMPANY 191 to develop a close and friendly relationship with employees of the subscriber to the service and other persons having access to the premises of the subscriber, than persons employed to provide an itinerant service on call. The danger of con- flicts in loyalty, subversive of the service, would clearly be more acute in the former case. In the undersigned's opinion, it is this distinction in the probable incidence of the conflict that Congress sought to avoid which distinguishes the cases which have been discussed. And if this distinction be accepted as valid, it is obvious that employees of the Respondent are involved in the provision of a piotective service closely analogous, in this significant respect, to that of the employees involved in the Brink's decision. In the absence of any clear indication to the contrary, the undersigned would conclude, as noted, that the Brink's decision is determinative of the issues with respect to the literal application of the statute. The respondent 's counsel , however, presents an additional , highly ingenious argument, at this point, which deserves a further note. He contends that its employees, in the certified unit, are engaged, as a matter of law, in protecting the property of their own employer, and that the rationale of the Brink's case, for this reason also, has no application here. This contention is based upon the observa- tion that an employer is defined in Section 2 (2) of the Act to include any person acting as the "agent" of an employer, directly or indirectly. The Respondent is described by its counsel as the "agent" of its subscribers in matters of plant protection and matters involving the safety of persons on their property. As an "agent," it is argued, the Respondent is equated, in law, with its subscribers and is entitled to every defense or limitation of liability to which the subscriber would be entitled if it were the direct employer of the plant protection personnel now hired by the Respondent. Conversely, it is argued that the Respondent, as an agent, is the "employer" under Section 9 (b) (3), by operation of law, and that its employees in the certified unit are thus engaged in the enforcement of rules to protect the property of their own employer and to protect the safety of persons on their own employer' s premises. The Respondent, in its relationships with any subscriber, clearly purports to act as an independent contractor G3 Independent contractors who agree to perform a service for another, and who are not controlled by the recipient of the benefits involved or subject to any right of control with respect to their physical conduct in the performance of the service, are "agents," nevertheless, with respect to their performance The contentions of the Respondent, in this respect at least, have merit. It does not follow inescapably, however, that independent con- tractors engaged in the performance of a service, which are themselves employers subject to the Act, are entitled, as a matter of law, to any defense or limitation of liability which might have been available to the recipient of the service, in an unfair labor practice proceeding, if the latter had utilized its own employees to perform the service involved The cases cited by counsel in this connection,64 though germane, are not very helpful. They merely hold that an election may be held among the employees of a so-called "independent contractor" and that a certification may issue to the "independent contractor" and his principal, jointly- under certain circumstances-with respect to their representation, to facilitate a collective bargain on behalf of the employees between their representative on the one hand and the joint employers, as found by the Board, on the other. No cases have been mentioned in which independent contractors, themselves employers in 63 Restatement of the Law of Agency, §§ 1, 2, 220 "Matter of American Scale Company. 19 N. L R B 124; Matter of Solvay Process Company, 26 N. L. R B. 650, Matter of S A Kendall, Jr, 38 N L iR. B 1071. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conventional sense of the word, have been permitted to escape liability for an unfair labor practice directed against their own employees, in the course of their own business activity, by virtue of a defense or limitation of liability which would have been available to the recipient of their service if persons employed directly by it had been involved. Well-established law, which would tend, in fact, to establish an opposite result, seems cogent in this connection, and has been per- suasive in the deliberations of the undersigned .61 The legislative history of the Act establishes that its definition of an "employer" was expressed to include any person acting as the agent of an employer, directly or indirectly, because of a desire on the part of the Congress to fix liability for the conduct made illegal by the statute, and to fix the obligations created by it, upon any person or business entity found to be in privity, under the rules of agency, with "employers" in the conventional sense of the term In cases which involve an employer respondent who seeks to commit an unfair labor practice with the aid of another person not otherwise chargeable under the Act, Section 2 (2) permits the Board to find the employer responsible for the acts of that person and to find that person independently liable, if the relationship of agency is found to exist between them 68 The undersigned finds no warrant in the legis- lative history, however, for any contention by an employer respondent that it is not chargeable for conduct illegal as to its own employees, merely because it is in fact or law the agent of another employer entitled to a valid defense or the benefits of some appropriate limitation of liability. While there is much that might be said for the proposition that any defense or limitation of liability available to an employer ought to be available to its agents, the undersigned finds no persuasive reason for the recognition of such a rule when the agency arises by virtue of a special arrangement between the employer and an independent contractor, itself an employer under the Act. The undersigned, therefore, finds the contentions of the Respondent in this connection to be without merit. It follows, and the undersigned finds, that the employees of the Respondent, in the certified unit, since they are not employed to guard the premises of their own employer," are not "guards" within the literal meaning of the statute. 3. The policy involved Insofar as the issues of the instant case require an interpretation of the literal statutory language, the undersigned considers the antecedent discussion as dispositive of the matter. Candor requires the acknowledgement, however, es See the Restatement of the Law of Agency, Sections 179, 180, 217, 334, 345, 347. The latter section reads as follows An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal. The limitation of the immunity granted by Section 9 (b) (3) to employers who hire guards directly, seems clear. 61 In the first decision of the Court of Appeals for the Sixth Circuit with respect to the Jones and Laughlin case, to which reference has been made, the court declared, in passing, that : "The question as to who are employers and employees under the Act is usually presented in cases where some person or agency acting either directly or indirectly for the employer interferes or seeks to interfere with the rights of employees 'to organize." This is clearly not the context in which the instant case arises. "' The record contains some evidence , already noted , that central station operators and guard-operators may be called upon to protect the Respondent's central station and its plant department against a criminal attack or the hazard of fire. It is clear , however, that this responsibility is incidental to the normal responsibility of the employees in connection with the operation of the Respondent 's service. There are no persons in the Respondent's employ-assigned exclusively to guard its own premises. AMERICAN DISTRICT TELEGRAPH COMPANY 193 that the contentions of the Respondent are bottomed, in the main , upon con- siderations of public policy which are merely adumbrated in a discussion con- fined to the literal meaning of the Act. These policy considerations, in the final analysis, are addressed to the sound discretion of the Board. The Respondent, however, advances them with vigor in its argument before the undersigned ; in fairness to its contention, a statement on the subject would appear to be appro- priate. To these considerations of public policy then, the undersigned now turns. The Respondent argues in substance that the public policy of the Act, as exemplified by Section 9 (b) (3), is to prevent any possible conflicts in duty and allegiance where the protection of life and property is involved. On the basis of the legislative history, it is clear that the rationale of the limitation established by the Act, with respect to the representation of plant guards by unions which admit other employees to membership, is precisely the possibility that their loyalty or allegiance to the union and their fellow union members would impair the loyal and effective performance of their duty to management and to the public generally. The Respondent argues that this possibility is present in the instant case as well. The Jones & Laughlin case, to which reference has been made, includes a statement by the Court of Appeals which indicates that its decision with respect to the impropriety of Board action in that case was bottomed, in the main, upon the facts that the employees involved were deputized as municipal officers. The court found the plant guards involved in the case to have "a private obligation to their employer and an obligation to the community as sworn, bonded and com- missioned police officers." It found that in cases of industrial unrest and strikes on the part of p oduction employees at the plant of their employer, the obligation of the plant guards to the public authority which had commissioned them would be incompatible with their obligation to the union responsible for the strike. And the Court of Appeals for the Seventh Circuit, in the Atkins case already noted, held, on similar grounds, that its enforcement of a Board order which required the respondent in that case to bargain with a union as the representative of its militarized plant guards would be "inimical" to the public welfare-on the ground that nothing should be permitted to interfere "in any degree or to any extent" with the obligation of the guards to the military authorities, and that membership in a union, with a concommitant right to bargain, might do that very thing. This, in substance, in the "reasoning" which "impressed" the congres- sional conferees. Section 910(b) (3), however, is not limited to guards possessed of a specific obligation to particular public authorities. The possible conflicts of loyalty which concerned the Congress are to be found in the relationship between the obligations of plant guard to his employer and his concurrent obligations to fellow union members in the employ of the employer, with assignments having no relation to plant protection ; they are not limited to possible conflicts in the relationship between the obligations of a plant guard to some public authority, and his coexistent obligations, if any, to fellow union members. In the light of the extension thus given to judicial doctrine, the Respondent argues, cogently, in its brief-as follows : We have seen that the statutory intention is to prevent the occurrence of a "double loyalty" situation. Conflict in duty and allegiance exist even more strongly as a possibility here than in the ordinary plant guard case. In the event of a strike or other labor dispute among the employees of a subscriber it would be difficult indeed for the Respondent and everyone else 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerned if Respondent's employees were to refuse to cross a picket line or were to refuse to repair Respondent 's equipment in that plant or were to- fail to report misconduct . . . . These dire occurrences are not remote, especially when one considers the strong contractual provisions and those sections of the Constitution of the Union which demand unswerving devotion of its members to the Union's purposes The Union can impose severe penalties on a member who fails to give his full allegiance to its poli- cies and decisions . A subscriber could be easily deprived of the vital pro- tection of Respondent 's service . The mere existence of such a possibility would tend to impair the value of the services ... calm reflection convinces one that if the purpose of the statute ever applied it applies here. The possibility of conflicts in loyalty is real and tremendously important. Without anything else the existence of this basic reason should be suffi- cient to induce the Board to declare that these employees are guards within the meaning of the Act. Concurrently, it is argued that a well-established public policy, having no direct relationship to the Act, compels the proscription of any right to membership in conventional unions on the part of public servants, such as firemen and police- men-on the ground that such officers should not be allowed to assume an obliga- tion or allegiance incompatible with their obligation to the public ' And it is contended that the employees of the Respondent ought to be considered subject to this policy also, since their work is akin to that of policemen and firemen and has similar importance to the public safety. In the face of any contention that the literal language of the statute fails to encompass the employees of the Respondent, it is argued that the Act should be broadly construed and applied to give effect to the policy of the Congress, and the public policy noted as to the union membership of employees in the public service. Reference is made to the rule of statutory construction that general statutes and remedial statutes in particular, should be interpreted "as a whole" in such a manner as to accomplish their purpose-and that a literal interpreta- tion of some phrase or section should not be adopted if such an interpretation would produce a result which is not in accord with the general purpose of the legislation or clearly unreasonable on any other ground."' The undersigned has been reminded that "the Board has not been commissioned to effectuate the policies of the Labor Relations Act so singlemindedly that it may wholly ignore other and equally important Congressional objectives." 40 It is argued that the Board ought not to formulate any order which, though it may accomplish some purpose of the Act, will at the same time subvert some other rule of law or some other principle of public policy or social good, in a manner not specifically authorized by the statute and not intended by Congress. These principles are salutary and well-established in the law. They cannot be gainsaid. In spite of that, their application in this case is not as clear as 'counsel for the Respondent seems to imply. The undersigned is fully aware that Congress was concerned about "industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce" and that it declared the opinion that "neither party has any right in its relations with any other to engage in acts or practices which jeop- ardize the public health, safety, or interest." The undersigned is aware that 68 Carter v Thompson, 165 Va. 312, Hutchinson v Magee, 278 Pa 119, Fraternal Cider of Po7ice v. Harris, 306 Mich. 68 ; City of Jackson V. McLeod, 24 So. (2d) 319 (Miss ). 69 Church of the Holy Ti inity v. Uruited States, 143 U. S 457. 70 Southern Steamship Co. v. N. L. R B , 316 U. S. 31. AMERICAN DISTRICT TELEGRAPH COMPANY 195 Congress declared its policy "to prescribe the legitimate rights of both employees and employers in their relations affecting commerce" and "to provide orderly and peaceful procedures for preventing the interference by either with the legiti- mate. rights of the other" and "to protect the rights of the public in connection with labor disputes affecting commerce." And it is clear that the Board is under a mandate to order only such affirmative action as will "effectuate the policies" of the Act. In spite of all this, it is also clear that the Board is under a mandate to determine the unit appropriate in any case for the purposes of collective bargaining in such a way as "to assure to employees the fullest freedom in exercising the rights guaranteed by [the] Act." Its mandate in this respect is clearly as broad or broader than that of the original Act, which authorized the Board to fix the appropriate unit "in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and other- wise to effectuate the policies of [the] Act." It is the sound application of the present mandate, then, which poses the problem of the case at bar. Testimony of probative value was presented by the Respondent as to the similarity between the work of its employees, in the certified unit, and that of conventional plant guards. The testimony was manifestly offered to show that the policy of the statute should be applicable here. It is clear that both are normally uniformed; that both are required to check the property they protect for safety and fire hazards, and mechanical irregularities, in the course of their i regular duties ; that both report such hazards or irregularities, and delinquencies on the part of production and maintenance workers, to their respective super- visors; that both are required to check the identity and the authority of persons upon, or seeking to enter, the property they protect ; that plant guards at prop- erty serviced by the Respondent are required to organize and perform their work in such a way as to facilitate the efficient performance of the Respondent's pro- tective devices, and that delinquencies in this connection, when reported by the Respondent, are regarded as serious ; and that both are called upon to interrupt activities subversive of safety, to apprehend and detain intruders or unauthor- ized persons on the property, but not to reprimand or admonish others, ordinarily, or prosecute charges against them. Except for the fact already noted, that plant guards in the conventional sense fulfill a fixed assignment, while employees of the Respondent provide an itinerant service on call, the similarity of their work must be conceded. There was evidence offered also, as to the high regard in which the Respond- ent's service is held by subscribers, and its value in the reduction of their insur- ance risks The close relationship between the Respondent's protective service and that of the municipal police and the fire department has already been noted. The record shows that the Respondent is equipped to detect and report hazards in the interior of a subscriber's property before the police or fire department would be aware of them otherwise, that it transmits information to them about alarms ; that its services are considered valuable by these municipal departments ; that it holds its uniformed employees to standards of personal conduct similar to those required of police ; and that it cooperates with the police and the fire department to advance their mutual interest in the efficient performance of its work. It is upon these grounds that counsel argues the quasi-public character of the services offered by the Respondent and seeks to invoke the policy which forbids the membership of public servants in conventional unions. The value of the Respondent's services, to the recipients of the service, and to the public authorities, cannot be denied The company, however-in spite of its contentions as to the "quasi-public" character and "emergency" nature of its 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD services-expressly disclaims any obligations as an insurer in its contractual relationships with subscribers. Its contract forms provide, as noted, for the full release of the obligation to provide a protective service, in the event of "strikes, riots . . . or any cause beyond the control" of the Respondent. Its-arrange- ments in this connection can only be construed as evidence of the realization that the business of the Respondent, whatever its value to subscribers may be, is a trade like that of any other business entity which provides a service of value to the community for a consideration." The Respondent refers, in its brief, to the fact that its employees are strategi- cally situated-"to collude with employees of subscribers or other persons" in an effort to sabotage or destroy the protection of the subscriber's property by the Respondent-to make false reports with respect to the presence of unauthorized persons on the property of subscribers, conditions found on the property, and the conduct of a subscriber's employees-and, in time of war or a national emer- gency, "to provide the means for sabotage, the stealing of vital and secret infor- mation, and other similar disasters." Opportunities of a similar nature are clearly available as well, however, to the ordinary employees of a subscriber. In any event, it has not been shown that any obligation which the employees of the Respondent might be required to assume as members of a labor organization would require them to engage in conduct of the type described. 0 In short, although it may truly be said of the Board that it is under a duty, in the selection of any appropriate unit, to consider the public interest as a material factor, the present record, in the undersigned's opinion, fails to establish with persuasive weight any public or private interest, affecting the right of this Respondent's employees to representation, sufficient to outweigh the public in- terest in their "fullest freedom" to exercise that right It is undenied that the union currently represents some persons in the employ of A. D. T. subscribers, and other electrical workers, employed by contractors, who do the outside work and basic indoor work on A. D. T. installations. It is argued-in the light of the agreements between the union and these employers, and the reservation by the union therein of the power to apply and enforce the Electrical Workers constitution, the local constitution, and the working rules of the union-that A D. T. employees might be required to take action in support of the Electrical Workers which would be inconsistent with their obligations to the Respondent and its subscribers. This may be tine as a theoretical proposition but no legislative or judicial finding has been cited to support it, and the possibil- ity or probability of such action by the union has not been established on the present record. It has been shown affirmatively that installers, inspectors, and repairmen of the Respondent crossed picket lines at the plant of an automobile manufacturer during a recent strike, to service an installation of the Respondent in the plant. It should also be noted, in passing, that the position of the Respondent, if ac- cepted as proper, might well create a situation, with respect to the representa- tion of A D T. employees, clearly foreign to the congiessional intent which is urged upon the undersigned as determinative. The Board has held, already, that watchmen who report to an A. D. T. Company in connection with its super- '%It was stipulated, in this case, that the business of the Respondent is highly com- petitive Eight firms provide a competitive service in the field of icatch patrols and manual fire alarm systems , eight provide competitive service in the field of automatic sprinkler and water-flow supervision , and four manufacture competitive fire alarms which operate on the "rate-of-rise" principle Two firms compete in the field of hold-up alarm service and four provide other types of general protection against burglary and unlawful entry. AMERICAN DISTRICT TELEGRAPH COMPANY 197 visory service for watchmen are "guards" within the meaning of the statute as amended . The employees of the Respondent, who investigate and report the failures of watchmen to make reports as required by the subscribers , clearly serve as "monitors " of the latter on behalf of the subscriber. If the employees of the Respondent, then, are limited in their choice of a collective bargaining representative to organizations which 'confine their membership to guards, it might well be found that the only organization available to act as their repre- sentative admitted , as members, the very watchmen who are subject to the "monitorial" supervision of the Respondent. The possibility of direct conflicts in the loyalty of the Respondent 's employees would not be minimized by this development ; it might well be enhanced , instead. The undersigned finds him- self unable to see how the intent of the Congress can possibly be given effect by any interpretation of the statute which could bring about this anomalous result. Upon the record as a whole, the undersigned is of the opinion that the dangers of "divided loyalty"-which the Court of Appeals anticipated in the case of militarized and deputized plant guards , and which the Congress anticipated in the case of all plant guards if they are permitted to, join organizations which also represent the production and maintenance workers of any employer-have not been shown to exist, in the case of A. D. T. employees , with sufficient per- suasive power to warrant the application of Section 9 (b) (3) in the instant case. The mandate of the statute, which requires the Board to assure to employees "the fullest freedom" in the exercise of the rights guaranteed by the Act, is compelling. It should not be set aside, unless it is clearly established that the language of limitation in the statute, upon which the Respondent relies, requires it by a process of eduction or ineluctable logic.72 This is not the situation in the case at bar. Conclusions After due consideration of the contentions presented so ably by counsel for the Respondent, and upon the entire record, the undersigned concludes and finds, in accordance with the previous determination of the Board, that all the employees of the Respondent in the Detroit Metropolitan area, excluding office and clerical employees, part-time employees, resident guards and all supervisory employees as defined in the Act, constituted and continue to constitute a unit appropriate for the purposes of a collective bargain, within the meaning of Section 9 (b) of the original Act and the Act as amended. It is further found that the Electrical Workers were not divested of their right to act as the duly designated agent of the Respondent's employees in the aforesaid unit by the amendment of the statute ; that the organization in question was, on June 4, 1947, and at all times material thereafter has been, and is now, entitled to act as the exclusive repre- sentative of employees in the appropriate bargaining unit, for the purposes of a collective bargain with respect to wages, pay rates, hours of work, and other conditions of employment. It follows, and is found, that the refusal of the Respondent, on July 31, 1947 and thereafter, to bargain collectively with the Electrical Workers as the exclusive representative of its employees in the ap- propriate unit was a violation of the original Act and the Act as amended. 73 The undersigned is mindful , in this connection , of the fact that protective services of the type provided by the Respondent are provided also by a number of other firms throughout the country , each of which employs a substantial number of employees Any rule effective to limit the right of employees in this type of activity, country-wide, to choose a bargaining representative can be justified only if clearly required by the Act. 853396-50-vol. 84-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in an,unfair labor practice, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Specifi- cally, it has been found that the Respondent refused to bargain collectively with the Electrical Workers as the representative of its employees in an appropriate unit. It will be recommended therefore that the Respondent, upon request, bargain collectively with the Electrical Workers. Since the Respondent's refusal to bargain, as indicated in the record, was based upon its desire to test the application of the statute, and since the record contains no evidence that any danger with respect to the commission of other unfair labor practices is to be anticipated from the conduct of the Respondent ,in the past, the undersigned will not recommend that the Respondent cease and desist from the commission of any such other unfair labor practices. In order to effectuate the policies of the Act, however, the undersigned will recommend that the Respondent cease and desist from the specific unfair labor practice found, as explained above, and that it cease and desist from any other action, which might tend to interfere in any manner with the efforts of the Electrical Workers to negotiate with it as the exclusive representative of employees in the collective bargaining unit herein found to be appropriate. CONCLUSIONS OF LAw Upon these findings of fact and upon the entire record in the case, the under- signed makes the following conclusions of law : 1. The operations of the Respondent, American District Telegraph Company, in- volve trade, traffic, and commerce among the several States and affect commerce within the meaning of Section 2 (6) and (7) of the original Act, and the Act as amended. 2. The International Brotherhood of Electrical Workers, Local Union 58, A. F. L., is a labor organization within the meaning of Section 2 (5) of the original Act, and the Act as amended. 3. All, the employees of the Respondent in the Detroit Metropolitan area, ex- cept for office and clerical employees, part time employees, resident guards and all supervisory employees as defined in the Act, constituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the original Act, and the Act as amended. 4 The International Brotherhood of Electrical Workers, Local Union 58, affiliated with the American Federation of Labor, was, on June 4, 1947, and at all times material thereafter has been, and is, the exclusive representative of all the employees in the aforesaid unit, for the purposes of collective bargaining, within the meaning of Section 9 (a) of the original Act, and Sections 9 (a) and 9 (b) (3) of the Act as amended. 5. By Its refusal, on July 31, 1947, and at all times thereafter, to bargain collectively with the International Brotherhood of Electrical Workers, Local AMERICAN DISTRICT TELEGRAPH COMPANY 199, Union 5S, 'affiliated with the American Federation of Labor, as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent -did engage, and has continued to engage, in an unfair labor practice within the meaning of Section 8 (5) of the original Act, and Section 8 (a) (5) of the Act as amended. 6. By its interference with the efforts of the International Brotherhood of Elec- trical Workers, Local Union 58, affiliated with the American Federation of Labor, to bargain collectively on behalf of employees in the appropriate unit, the Re- spondent did engage, and has continued to engage, in an unfair labor practice within the meaning of Section 8 (1) of the original Act, and Section 8 (a) (1) of the Act as amended. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the original Act, and the Act as amended. RECOMMENDATIONS Upon the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, American District Telegraph Company, at Detroit, Michigan, and its officers, agents, successors, and assigns should : 1. Cease and desist from : (a) Any refusal to bargain collectively with the International Brotherhood of Electrical Workers, Local Union 58, affiliated with the American Federation of Labor, as the exclusive representative of its employees in the Detroit Metropolitan area, except for office and clerical employees, part time employees, resident guards and all supervisory employees as defined in the Act, in respect to rates of pay, wages, hours of work and other conditions of employment ; (b) Interference in any other manner with the efforts of the International Brotherhood of Electrical Workers, Local Union 58, affiliated with the American Federation of Labor, to bargain collectively on behalf of employees in the appro- priate unit. 2 Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Upon request, bargain collectively with the International Brotherhood of Electrical Workers, Local Union 58, affiliated with the American Federation of Labor, as the exclusive representative of its employees in the Detroit Metro- politan area, except for office and clerical employees, part time employees, resi- dent guards and all supervisory employees as defined in the Act, with respect to rates of pay, wages, hours of work, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement ; (b) Post at its office and places of business in the Detroit Metropolitan area, copies of the notice attached to this report. Copies of the notice, to be furnished by the Regional Director of the Seventh Region, as the agent of the Board, should be posted by the Respondent immediately upon their receipt, after being duly signed by a representative of the Respondent, and should be maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps should be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other material; (c) File with the Regional Director of the Seventh Region, as the agent of the Board, within twenty (20) days after the date of service of this Inter- mediate Report and Recommended Order, a report in writing setting forth in detail the manner and form in which it has complied with the foregoing recom- mendations. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All parties are advised that upon the filing of this Intermediate Report and Recommended Order and the service of copies upon the parties-as provided in Section 203.45 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended, effective August 18 , 1949-the Board will enter an order transferring the case to itself, and will serve a copy of the order upon each of the parties, setting forth the date of the transfer. If, within twenty (20) days after the date of service of this Intermediate Report and Recommended Order, the Respondent satisfies the Regional Director, as the agent of the Board, that it has complied, or will comply, with the fore- going recommendations , it is recommended that the National Labor Relations Board issue an order, or take other appropriate action, to close the case one compliance . Unless the Respondent satisfies the Regional Director, within twenty ( 20) days after the date of service of this Intermediate Report and Recommended Order that it has complied , or will comply , with the foregoing recommendations, it is recommended that the National Labor Relations Board issue an order requiring the Respondent to take such action. All parties are advised , however, that any party may, within twenty (20). days after the date of service of the order transferring the case to the Board file with the Board, Rochambeau Building, Washington 25, D. C.-pursuant to Section 203 .46 of the Rules and Regulations-an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (in- cluding rulings upon all motions or objections ) he relies upon, together with the original and six copies of a brief in support of the exceptions . Matters not included in the Statement of Exceptions may not thereafter be urged before the Board , or in any further proceeding under the Act. Any party also may, within the same period , file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such a Statement of Exceptions and supporting brief, or the filing of a brief in support of the Intermediate Report and Recommended Order, the party filing any such document shall serve a copy of it upon each of the other parties. Proof of service upon the other parties shall be promptly made, as required by Section 203 85, with respect to all papers filed with the Board. Should any party desire permission to argue orally before the Board, a re- quest for such permission must be made in writing to the Board within ten (10) days after the date of service of the order transferring the case to the Board. The parties are further advised that , in the event no Statement of Exceptions is filed, as provided by the Rules and Regulations , and in the absence of com- pliance, all objections and exceptions to this Intermediate Report and Recom- mended Order shall be deemed to be waived for all purposes-as provided in Section 203 .48 of the Rules and Regulations-and the findings , conclusions and', recommendations contained in it shall be adopted by the Board and become its; findings, conclusions and order. Dated at Washington, D. C, this 31st day of January 1949. MAURICE M . MILLER, Trial Examiner. AMERICAN DISTRICT TELEGRAPH COMPANY 201 APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that : WE WILL BARGAIN collectively , upon request, with the International Brother- hood of Electrical Workers, Local Union 58, affiliated with the American Fed- eration of Labor, as the exclusive representative of all the employees in the appropriate unit described below, with respect to rates of pay , wages, hours of employment or other conditions of employment , and if an understanding is reached , embody such understanding in a signed agreement . The appro- priate unit is: All of our employees in the Detroit metropolitan area, except for office and clerical employees, part time employees, resident guards and all supervisory employees with authority, in the interest of the Employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. WE WILL NOT, in any manner, interfere with the efforts of the International Brotherhood of Electrical Workers, Local Union 58, affiliated with the Amer- ican Federation of Labor, to bargain collectively with us as the exclusive representative of employees in the appropriate unit described above. AMERICAN DISTRICT TELEGRAPH COMPANY, Employer. Dated------------------ By ---------------------------------------------- (Representative ) ( Title) This notice must remain posted for sixty (60) days from the date of posting and must not be altered, defaced, or covered by any other material.