National Fireworks, Inc.

In the Matter of NATIONAL FIREWORKS, INC. and AMERICAN FEDERATION OF LABOR Case No. 11-R-775.-Decided June 9,1945 Mr. Clifford L. Hardy, for the Board. Mr. Joseph H. Sharrillo, of West Hanover, Mass ., for the Company. Mr. James E. Stewart, of Mayfield, Ky., for the Union. Mr. Jack Mantel, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a first amended petition duly filed by American Federation of Labor, herein called the Union, alleging that a question affecting com- merce had arisen concerning the representation of employees of National Fireworks, Inc., Mayfield, Kentucky, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William O. Murdock, Trial Examiner. Said hearing was held at Mayfield, Kentucky, on April 19, 1945. The Company, the Union, and the Board 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 Examiner's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY National Fireworks, Inc., a Massachusetts corporation , has its principal plant at West Hanover, Massachusetts, and operates an ammunition loading plant at Mayfield , Kentucky, the only plant involved in this pro- 62 N. L. R. B., No. 43. 271 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceeding. During the 12-month period ending March 1945, the Company purchased raw materials consisting of powder, metal components, and lumber, having a value of over $100,000, of which 75 per cent was shipped to the Mayfield plant from points outside the Commonwealth of Kentucky, During the same period, the Company's finished products were valued at over $100,000, all of which was shipped to the Armed Services. The Company admits, only for the purposes of this cast, that it is en- gaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED 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 the Union as the ex- clusive bargaining representative of certain of its employees 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 units hereinafter found appropriate We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. - IV. THE APPROPRIATE UNITS The Union contends all plant-protection-employees, including firemen, sergeants, corporals, and gate girls, but excluding the captain, lieutenants, industrial investigators, clerical employees, and all other supervisory em- ployees, constitute an appropriate unit. The Company contends that a unit including deputized guards is inappropriate, and that in any event sergeants, corporals, gate girls, and firemen should be excluded from such a unit. In support of its contention; the Company claims that the guards who have taken an oath as special police officers of the Commonwealth of Ken- tucky should not belong to a union, by virtue of recent rulings by United States Circuit Courts of Appeals? The Company urges that the principles enunciated in the above court decision be applied to the instant case. How- 'The Board agent reported that the Union submitted 38 authorization cards, and that 36 of the cards contained the names of persons appearing on the Company's pay roll dated February 18, 1945, which contained the, names of 59 employees in the unit alleged by the Union to be appropriate. 2 N L. R B v. E C Atkins and Company, 147 F (2d) 730 (C C A 7) ;-N. L R. B . v. Jones and Laughlin Steel Corp , 146 F (2d) 718 (C C A. 6). On June 4, 1945 , the U. S Supreme Court granted the Board 's petition for writs of-certiorari in these cases, vacated the judgments , and remanded the cases to the respective Circuit Courts of Appeals for further consideration in light of alleged changed circumstances with respect to the demilitarization of the employees involved. NATIONAL FIREWORKS, INC. 273 ever, the Board does not acquiesce in those decisions. Insofar as the Com- pany inferentially maintains that membership in a union may interfere with the duty which a guard owes to his employer, we do not agree that there is any such incompatibility between union membership and faithful performance of duty. Nor do we regard the militarization or deputization of guards as materially affecting their status as employees or as creating a new conflict in loyalties. Accordingly, we find that a unit of deputized guards is appropriate 8 The plant-protection employees consist of plant guards, firemen, and industrial safety investigators, all of the groups being responsible to the captain of the plant-protection department. At present, only 29 of the guards are deputized; the Company, however, recently requested deputiza- tion of the remaining guards which will be effected in the near future. All of them are uniformed. They perform foot patrols, carrying watch clocks ; check persons and vehicles in and out at the gates; search employees for matches, by having them turn their pockets inside out ; report employees who come to work under the influence of intoxicants ; and observe and report general violations of plant rules. The Company employs 16 firemen who are supervised by 1 lieutenant, who is in turn under the direction of the captain of the plant-protection department. None of the firemen are deputized, nor has the Company requested their deputization. The firemen make 2-hour inspection tours of the plant watching for fire hazards; train production employees to be volunteer firemen in each building; conduct fire drills ; and maintain the fire fighting equipment. Since the firemen are neither deputized nor do they have any monitorial functions such as exercised by the guards, we shall not include the firemen within the unit of deputized guards.` However, we shall accord the fire- men an opportunity to bargain collectively in a unit separate and apart from that of the deputized guards. Sergeants: The Company employs five sergeants, one of whom the parties referred to in the record as a supervisory sergeant and agreed to exclude from the unit. The remaining four in this group are in charge of shifts, each having supervision over nine guards. The record is clear that the sergeants have authority effectively to recommend the discharge or discipline of guards under their direction. Accordingly, we shall exclude all of them. Corporals: There are four corporals who 'are stationed at the police headquarters during the various shifts, to whom the guards on the posts report by telephone every 30 minutes. Failures to make such reports within 3 See Matter of Aluminum Company of America, et at., 61 N. L. R. B. 1066; Matter of Beth- lehem-Fairfield Shipyard, Inc., and Bethlehem Steel Company, Shipbuilding Division, Baltimore Yard, 61 N. L R. B. 901, Matter of International Harvester Company, Milwaukee Works, 61 N. L. R. B. 912. 4 Cf. Matter of Bell Aircraft Corporation, 54 N. L. R. B. 1095. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5 minutes of the schedule are reported by the corporal to the sergeant responsible for the particular guard, who makes a personal investigation of the matter. Since the corporals are primarily engaged in a desk job and do not appear to have any supervisory authority within the Board's usual definition thereof, we shall include them in the unit. Gate girls: There are three employees in this group who were formerly uniformed and militarized They are stationed at one of the gate offices where they issue passes, keep records on persons and trucks entering and leaving the plant, and assist the guards in issuing buttons. They do not attend the gate as guards do, nor do. they engage in foot patrols or the watch searches. They are on the salaried office pay roll and classified as clerks, whereas the guards are hourly paid. Due to the clerical nature of their duties, and the fact that they are not deputized , we shall exclude the gate girls. - We find that each of the following groups of the Company's employees constitutes a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act: 1 All deputized guards of the Company, including corporals, but ex- cluding the captain, lieutenants, sergeants, gate girls, industrial investiga- tors. clerical employees, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. 2. All plant-protection firemen of the Company, excluding the captain, the lieutenant, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or.effectively recommend such action. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by elections by secret ballot among the employees in the appropriate units who were employed during the pay-roll period immedi- ately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction DIRECTION OF ELECTIONS 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 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 representatives for the purposes of collective bargaining with National Firework's, Inc., iVlayfield, Kentucky , elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direc- NATIONAL FIREWORKS, INC 275 tion, under the direction and supervision of the Regional Director for the Eleventh 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 units found appro- priate in Section IV, above, who were employed during the pay-roll period immediately preceding 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 those employees who have since quit or been dis- charged 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 represented by American Federation of Labor, for the purposes of collective bar- gaining. 5 Including guards who are to be deputized in the near future a