The Babcock & Wilcox Co.

In the Matter of THE BABCOCK & WILCOX COMPANY and PLANT GUARDS FEDERAL LABOR UNION #23802 (AMERICAN FEDERATION OF LABOR) Case No. 8-B-1739.-Decided April 13, 1945 Mr. R. C. Landon, of Barberton, Ohio, for the Company. Messrs. Jesse Gallagher and JaQnes A. Patterson, of Cleveland, Ohio, for Local 23802. Mr. Donald H. Frank, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Plant Guards Federal Labor Union #23802 (American Federation of Labor), herein called Local 23802, alleging that a question affecting commerce had arisen concerning the representation of employees of The Babcock & Wilcox Company, Bar- berton, Ohio, herein called the Company, the National Labor Rela- tions Board provided for an appropriate hearing upon due notice before Thomas E. Shroyer, Trial Examiner. Said hearing was held at Cleveland, Ohio, on January 30, 1945. The Company and Local 23802 appeared and participated. All parties were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Boad. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Babcock & Wilcox Company is a New Jersey corporation oper- ating manufacturing plants in various parts of the United States, including a plant at Barberton, Ohio, with which we are here con- cerned. At its Barberton plant, the Company fabricates pressure 61 N. L. R. B., No 72. 529 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vessels and does other special work for the Army and Navy. The raw materials used at the Barberton plant annually are valued in excess of $1,000,000, the majority of which comes to it from outside the State of Ohio. Its products annually are valued in excess of $1,000,000, the majority of which travels outside the State of Ohio. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act, and we so find. IT. THE ORGANIZATION INVOLVED Plant Guards Federal Labor Union #23802, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to Local 23802 as the exclusive bargaining representative of certain of the Company's employees until Local 23802 has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that Local 23802 represents a substantial number of employees in the unit hereinafter found appropriate.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT Local 23802 petitioned for a unit consisting of all the plant guards of the Company at the Barberton plant, excluding the chief of plant guards. At the hearing, Local 23802 sought to exclude the sergeants as well. The testimony at the hearing revealed that the sergeants are supervisory employees in that they issue orders to, discipline, and change the work of patrolmen. The Company took no position with regard to inclusions and exclusions, maintaining that any unit of the plant guards involved herein was an inappropriate one. All of the Company's guards are militarized, armed, and uniformed. They are hired by the Company to check the passage of all persons in and out of the plant gates, to report all suspicious or unsafe circum- 'The Field Examiner reported that Local 23802 submitted 23 authorization cards, 22 of which bore the names of persons appearing on the Company 's pay roll of January 15, 1945, which contained the names of 38 employees in the unit sought . All of the cards were dated in December 1944. At the hearing, Local 23802 submitted 11 additional cards bearing apparently genuine signatures and purporting to have been signed in December 1944, and January 1945, but which were not checked against the Company's pay roll. THE BABCOCK & WILCOX COMPANY 531 stances observed, and to take into custody any person guilty of a violation of the rules. These employees are paid their salaries by the Company. - The Company appears to rely on' the reasoning of the decision of the United States Court of Appeals for the Sixth Circuit, in N. L. R. B. v. Jones cfi Laughlin Steel Corporation,' contending that (1) the guards involved represent management by enforcing the rules of the Company and making confidential reports; that (2) to establish them as a separate appropriate unit would not effectuate the policies of the Act; and, moreover, that (3) guards are not employees of the Company within the meaning of the Act. These contentions have been considered by the Board and answered in numerous previous decisions.3 No persuasive argument has been offered by the Company to encourage departure from the principles established in those cases. We find that all of the plant guards of the Company at the Bar- berton, Ohio, plant, but excluding the chief of plant guards and the sergeants, and any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. 0 DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Babcock & Wilcox Company, Barberton, Ohio, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days 2146 F ,(2d) 718 (C. C A 6) 'platter of Rohm cC Haas Company, 60 N L R B 554. Matter of Diato Corpora- tion, 52 N L R. B 322 ; see cases cited therein 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the date of this Direction, under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately pre- ceding the date of this Direction, including employees who did not work during the said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be repre- sented by Plant Guards Federal Labor Union #23802 (American Federation of Labor), for the purposes of collective bargaining. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Direction of Election.