National Lead Co.

In the Matter of NATIONAL LEAD COMPANY, TITANIUM DIVISION and UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, CIO. Case No. 14-R-1136.-Decided June 5, 1945 Mr. Russell C. Stone, of St. Louis, Mo., for the Company. Air. Robert M. Bickel, of St. Louis, Mo., for the Union. Mr. Donald H. Frank, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE -Upon a petition duly filed by United Gas, Coke & Chemical Workers of America, CIO, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Na- tional Lead Company, Titanium Division, St Louis, Missouri, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon clue notice before Helen F Humphrey, Trial Examiner Said hearing vv as held at St Louis, Missouri, on March 14, 1945. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing on the issues . The Trial Exam- iner'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 Board. At the hearing, the Company moved the dismissal of the petition on three grounds For reason, stated in Section IV, infra, the rnfotion is hereby denied. Upon the entire record ill the case, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY National Lead Company is a New Jersey corporation which maintains plants, offices, and warehouses throughout the United States. We are here 62 N. L. R. B., No. 13. 107 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerned solely with its Titanium Division, located at St. Louis, Missouri, where the Company is engaged in the manufacture of titanium barium and titanium calcium pigments, sodium sulphite, and oleum. A substantial por- tion of these materials is presently being used in the war effort. During the last 6 months of 1944, the Company purchased for its Titanium n Division coal, barytes, lime, and illnenite, having a value in excess of $50,000, of which at least 50 percent was transported to the Titanium Division from plants outside the State of Missouri. During the same period, the Titanium Division manufactured products having a value in excess of $100,000, of which at least 50 percent was transported from the Titanium Division to points outside the State of Missouri. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. _ II. THE ORGANIZATION INVOLVED United Gas, Coke & Chemical Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of its plant guards until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hearing, indicates that the Union represents a substantial number of employees in the unit sought.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union seeks to represent a unit consisting of all of the Company's "watchmen and militarized guards" at its Titanium Division. Local 212 of this Union presently represents a unit of the production and maintenance workers at this plant, and Local 225 of this Union represents at this plant a unit of salaried employees. There is no history of collective bargaining for the unit which the Union now seeks to represent. The Company moved that the petition be dismissed on the theory that (1) militarized guards are not employees within the meaning of the Act; (2) it would not effectuate the policies of the Act to permit these employees to bargain collectively, and (3) militarized guards should not be repre- I The Field Examiner reported that the Union submitted 11 membership cards, all of which bore apparently genuine original signatures , that the names of all persons appearing on the cards were listed on the Company's pay roll of January 29, 1945 , wjuch contained the names of 14 employees in the unit sought; and that 10 of the cards were dated January 1945 , and 1 was undated NATIONAL LEAD COMPANY 109 sented by the union which represents the production and maintenance em- ployees." We have considered the first two contentions in numerous pre- vious cases involving militarized plant-protection employees and have found that such guards are employees within the meaning of the Act,' collective bargaining for whom would effectuate the Act's policy.` No persuasive argument has been presented in the instant case for a reversal of our previ- ous determination on these questions. The Board has, moreover, repeatedly held that a union which represents other employees of a company may like- wise represent that company's plant-protection personnel.' We are con- vinced that our practice of segregating such employees in separate bargain- ing units is sufficient to protect the special status of these employees and the interest of the Army therein.' Here it appears that the Union intends to set up a separate local to represent guards in the event that the Union is certified as their representative. The record shows that the Union's pres- ent practice in its negotiations with other companies is to represent guards separately, establishing for them separate meetings and their own organi- zation.7 These employees have in the past conducted their meetings sepa- rately from the rest of the Company's employees We are satisfied that these steps indicate the intention to represent these employees as a separate unit in fact as well as in form. Considering the above factors, in addition to the consideration we have deemed controlling in many similar cases, we have denied the Company's motion to dismiss the petition. The duties of the watchmen and guards involved herein appear to be those ordinarily associated with employees in those categories! The guards and watchmen must he familiar with the various duties of both, since they relieve each other at various times. Their duties involve patrolling the outer fence, checking employees' identification cards at the gates, admitting and guiding visitors, examining parcels, and inspecting the premises for fire 2 The Company relics on the decision of the f kited States Court of Appeals for the Sixth Circuit in N L R B v Jones & Laughhu Steel Corpoiation, 146 F (2d) 718 (C C. A 6), and on the decision of the United States Court of Appeals for the Seventh Circuit in N L R B v E C Atkins, 16 L R. R 53. The Board does not acquiesce in the doctrines enunciated in those cases. Matter of International Harvester Company, Milwaukee Works, 61 N L. R B 912; Matter of Babcock & Wilcox Company, 61 N L R B 529, Matter of Budd Wheel Company, 52 N L R B 666, Matter of Chrysler Corporation, 44 N L R B 881 4 Matter of Rohm & Haas Company, 60 N L R B 554; Lockheed Aircraft Corpoiation, Lock- heed Modification Center, 61 N. L. R B 1336 sMatter of International Harvester Company, Milwaukee lVoiks supra, Matter of Diavo Corpora- tion, 52 N. L. R B. 322. E Matter of Bethlehem Steel Company, 61 N. L. R. B. 892 7 The Union has offered to include in any contract covering guards a provision that the guards will Leman at their posts in the event of a strike by othem employees. s Among the employees involved herein are certain employees called "temporary" guards and watchmen. This is a misnomer. These employees are regular , full-time employees who were formerly in the Company 's employ in other capacities but who were transferred to positions as guards and watchmen when the Company' s plant-protection force was expanded They perform the same duties and receive the same privileges as the other employees in these categories , and they differ from the other guaids and watchmen only in that the "temporary" workers have retained their seniority in the jobs from which they wcie ti ansfci red All refcicnces to plant- protection petsonncl herein include these employees. 110 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD hazards or suspicious circumstances. They report irregularities to the chief guard and are authorized to make arrests in extreme cases. This power to arrest, however , appears to have been exercised only twice during the plant's history. The four original guards were furnished uniforms prior to the entry of the United States into the war. None of the guards employed by the Company since that time have been issued uniforms , and when the uniforms of two of the guards wore out, they were not replaced. The two guards who patrol the property for fire protection are not armed ; all other plant-protection employees are. One of these employees has not become a member of the auxiliary military police. For the reasons stated in 111Iatter of Sealed Power Corporation,' we shall include him in the unit hereinafter found appropriate. The chief guard has the authority to recommend discharge and is clean} a supervisory employee within our usual definition . We shall, therefore, exclude him from the unit hereinafter found appropriate. We find that all of the Company's watchmen and guards at its Titanium Division, but excluding the chief guard, and any other supervisory employ- ees with authority to hire, promote, discharge , discipline, or otherwise effect changes in the status of employees , or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining withal the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period imme- diately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. . DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article ITT, 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 representatives for the purposes of collective bargaining with National Lead Commpany . Titanium Division, St. Louis, Missouri, an election by secret ballot shall be conducted as early as possible , but not later than thirty ( 30) clays from the date of this Direction, tinder the direction and supervision of the Regional Director for the Fourteenth 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 ° 61 N 1. R B 1639 NATIONAL LEAD COMPANY found appropriate in Section IV, above, who were 'employed during the pay-roll period immediately precednig 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 elec- tion, to determine whether or not they desire to be represented by United Gas, Coke & Chemical Workers of America, CIO, for the purposes of collective bargaining.