Radio Corp. of America

In the Matter of RADIO CORPORATION OF AMERICA (R. C. A. VICTOR DIVISION), EMPLOYER and INTERNATIONAL -BROTHERHOOD OF ELEC- TRICAL WORKERS, A. F. L., PETITIONER Case No. 6-RC-9.-Decided March 19, 1948 Mr. J. M. Clifford, of Camden, N. J., for the Employer. Messrs. A. R. Johnson and A. 0. Babish, of Pittsburgh, Pa., for the Petitioner. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Pitts- burgh, Pennsylvania, on December 5, 1947, before W. G. Stuart Sher- man, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Radio Corporation of America, a Delaware corporation, through its R. C. A. Victor Division, is engaged in the manufacture, sale, and distribution of recordings or records. It operates a plant at Canons- burg, Pennsylvania, the only one involved in this proceeding. The value of the raw materials used at the Canonsburg plant from October 1, 1947, to November 15, 1947, exceeded $29,000, of which more than 50 percent was received from points outside the State. The value of the output of this plant during the same period was $47,000, of which more than 50 percent was shipped to points outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. 76 N. L. R. B., No. 115. 826 RADIO CORPORATION OF AMERICA 827 III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Employer and the Petitioner agree that a unit of production and maintenance employees, excluding office clerical employees and supervisors, is appropriate for bargaining purposes. The Employer would exclude, and the Petitioner would include, four employees who work 1 week a month as watchmen and the balance of the month as janitors. As watchmen, their duties are to control admissions to the plant, to prevent employees from removing packages from the plant without a pass, to report fires, and to quell disturbances among other employees., As janitors, they do clean-up work about the plant. An employee who devotes all his working time to duties like those performed by the four employees in question in their capacity as watchmen has been held to be "employed as a guard" within the meaning of Section 9 (b) (3) of the amended Act,2 and, therefore, properly excluded from a unit of production and maintenance em- ployees.3 The instant case raises the further question whether to in- clude in a production and maintenance unit employees who devote much less than half their working time to duties as watchmen and the rest of their working time to maintenance duties. The question in the Hill case was whether watchmen were guards; the issue here is whether these men are watchmen. Section 9 (b) (3) does not in our opinion unequivocally require that we consider to be "employed as a guard" every employee who spends any part of his working time, however insignificant, in performing the duties described in that section. It seems to us equally, if not more, reasonable to consider an individual to be "employed as a guard" They are not deputized, armed* or uniformed and have no monitorial or supervisory duties 2 Section 9 (b) (3) provides: "That the Board shall not . . . decide that any unit is appropriate for such pur- poses 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 organi- zation shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.- 3 Matter of C. V. Hill & Company, Inc., 76 N. L. R. B. 158. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only if his guard duties constitute a dominant aspect, and not merely an incidental feature, of his total work pattern. Inasmuch as none of the four janitor-watchmen in the instant case is engaged predominantly in work as a watchman or "guard," we find that they are not employed as "guards" but as janitors, and we shall, therefore, include them in the unit as maintenance workers.4 We find that all production and maintenance workers at the Em- ployer's Canonsburg plant, including janitors, but excluding office clerical employees, guards, and supervisors,] constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Radio Corporation of America (R. C. A. Victor Division), Canonsburg, Pennsylvania, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the di- rection and supervision of the Regional Director for the Sixth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by International Brotherhood of Electrical Workers, AFL, for the purposes of collective bargaining. MEMBERS REYNOLDS and MURDOCK, dissenting in part : We are unable to agree with the action of our colleagues to the extent that they have included in a production and maintenance unit ' To the extent that our decision herein may be inconsistent with our unit determination in Matte? of Johnson City Foundry & Machine Works, Inc., 75 N L. R B. 475 , that case is hereby overruled Among the excluded categories are group supervisors, assistant foremen , foremen (maintenance trade ), assistant foremen (packing, shipping and stores ), cost accountant, senior clerk, key card punch operator ( both senior and junior ), intermediate clerks, secre- tary , secretary-stenographers, typists ( junior ), telephone-receptionist, nurse , accounting clerk, tabulating machine operator (general clerk ), secretary-supervisor (administrative), plant accountant superintendent, plant manager , personnel manager, secretary to super- visor-engineering. RADIO CORPORATION OF AMERICA 829 four employees who work 1 week a month as watchmen and the bal- ance of the month as janitors. The majority includes these employees in the unit because they are engaged "predominantly" in janitorial work, although 1 week each month they work as watchmen with duties to control admissions to the plant, to prevent employees from removing packages without a pass, and to quell disturbances among other employees. In Matter of C. V. Hill & Company, Inc.6 the Board construed Section 9 (b) (3) of the Act strictly to find that ordinary watchmen are "guards" within the meaning of that section. We find no warrant for the conclusion that the restrictions of Section 9 (b) (3) are applicable to full time watch- men but not to part-time watchmen. The section provides : That the Board shall not . . . decide that any unit is appropri- ate . . . if it includes, together with other employees, any individ- ual 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; (Emphasis supplied) Undeniably each of the four employees in question is an "individual employed as a guard," and accordingly, the plain language of the sec- tion bars us from including them in a unit with other employees. We recognize that the Board has in the past applied the concept of pro tanto unit inclusion to employees who divide their time between different jobs, but the terms of Section 9 (b) (3) preclude such action in the case of watchmen. Moreover, it is apparent that the policy considerations which prompted the inclusion of Section 9 (b) (3) in the Act, are just as applicable in the case of part-time watchmen. The legislative history demonstrates, and we do not believe that our col- leagues deny, that the Congress was concerned with the possibility that if guards were included in production units their loyalty to fellow union nlenlbers might conflict with their duty to report to their em- ployer derelictions of duty or violations of rules by employees? An employee who spends only part of his time as a watchman will, of ° 76 N I, R B 158 - 'The House bill defined "supervisors" to include any employee "with police duties or who is employed to act in other respects for the Employer in dealing with other individuals employed by the employer" H. R. 3020, 80th Cong., 1st Sess. , 1947, Sec 2 (12) (b). The House Report explained that the bill excluded the several categories of employees defined as "supervisors" because "there must be in management and loyal to it persons not sub- ject to influence or control of unions " In describing the classifications to be excluded for this reason , the report stated that " Plant policemen and guards prevent disorders and report misconduct of employees and of unions and their members " H. Rept. No. 245, 80th Cong, 1st Sess., 1947, p. 16. Sec. 9 (b) (3), which represented a compromise on the more stringent counterpart in the House bill, nevertheless plainly had the same purpose and effect of preventing guards from being in a position where there might be a conflict between loyalty to fellow union members, and duty to the employer. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course, be in a position where there may be a conflict between his loy- alty to fellow union members and to his employer for only part of the period of time during which such conflict would exist in the case of a full time watchman. But we find ourselves unable to grasp or accept a process of reasoning which concludes that the Congressional purpose to eliminate the possible conflict of loyalty which exists during the week each month that these employees work as watchmen, may be ignored because in 3 other weeks they work in a position where no conflict of loyalty can exist.