Bo-Low Lamp Corp.

BO-LOW LAMP CORPORATION 505 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioners seek units of guards and ushers, respectively, em- ployed by Pinkerton at the Yonkers Raceway in New York State which has represented these employees for a number of years. The Intervenor also contends that a, unit of guards is not appropriate, upon the ground that the employees involved are not "guards" within the meaning of the Act. The guards sought herein are composed of Pinkerton employees classified as patrolmen. Their duties are to maintain order and to protect and safeguard the property of the Raceway and its patrons. They have the authority to make arrests and eject intruders. They are uniformed, armed, and deputized. The ushers, also composed of Pinkerton employees, assist in seating patrons, direct them to rest- rooms and render first-aid service, if necessary. They are also uni- formed and licensed but not armed. The ushers, posted at restricted areas, are empowered to keep unauthorized persons from entering or from gaining admission without the payment of a fee. All ushers, like the patrolmen, enforce rules against the defacing of property. In the present proceeding, the acknowledged duties of the guards and ushers to enforce rules to protect property and to exclude the entry of unauthorized persons thereon clearly bring them within the statutory definition of guards.' We find no merit in the Intervenor's contention that because the Pinkerton guards are employed at the Raceway, they are not guards. As the guards and ushers have sub- stantially the same functions, we find that they together constitute a single appropriate unit. Accordingly, as neither Petitioner has re- quested an election in the broader guard unit found to be appropriate, we shall dismiss the petitions. [The Board dismissed the petitions.] 3 The fact that the ushers perform additional duties of a nonguard character does not detract from their status as "guards " Walterboro Manufacturing Corporation, 106 NLRB 1383. Bo-Low LAMP CORPORATION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 3, A. F. L., PETITIONER. Case No. 2-RC, -6994. February 3,1955 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Arthur Younger, hearing of- 111 NLRB No. 77. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ficer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. The Intervenor asserts that on August 5, 1954, prior to the filing of the petition herein or the receipt of the Petitioner's demand for recognition on August 6, 1954, the Intervenor and the Employer exe- cuted a contract which it now alleges to be a bar to the instant pro- ceeding. The Petitioner contends, in part, that the contract is not a bar on the ground that the evidence in the record does not conclusively establish that the contract was in fact signed before August 6 when the Employer admittedly received the Petitioner's demand for recognition. The record shows that on or about July 15, 1954, the Petitioner be- gan its campaign to organize the employees involved herein? On August 4, practically all of the employees signed cards designating the Petitioner as their bargaining representative. On August 5, the Petitioner informed the Employer by letter, which the Employer re- ceived on August 6, that it represented the majority of the employees and asked the Employer to meet with it for the purpose of negotiating a collective-bargaining agreement. The Petitioner thereafter filed its representation petition on August 6. On July 27, 1954, or shortly after the Petitioner herein had com- menced organizing the employees, the Intervenor appeared at the Em- ployer's plant and succeeded late that afternoon in having a majority of the employees sign cards designating the Intervenor as their bar- gaining representative. Thereupon the Intervenor's representatives called on the Employer's president, Robert Goldman, and demanded that the Employer immediately negotiate a collective-bargaining agreement. The Employer refused to do so, alleging that it would not enter into a collective-bargaining agreement in the absence of its at- torney. However, on the insistence of the, Intervenor's representa- tives, the Employer entered into a "recognition agreement" which in- cluded certain substantive provisions and language to the effect that all of the provisions were to be incorporated in a contract between the Intervenor and the Employer sometime on or before August 23, 1954.3 1 Metal, Plastics, Miscellaneous Sales Novelty and Production Workers, Local 222, I J W. U., AFL, intervened on the basis of an existing collective-bargaining contract with the Employer. 2 The record also shows that sometime during 1953, the Petitioner attempted to organize the employees but abandoned its efforts after the Employer filed a representation petition. 8 Although, as indicated , this "recognition agreement" contained substantive provisions affecting wage rates and other terms or conditions of employment effective August 2, the Intervenor does not urge this agreement as a bar to the proceeding. BO-LOW LAMP CORPORATION 507 In this connection, the Employer's president testified that he there- after informed employees that he had signed a "stipulation" but did not inform them of the terms of the "stipulation" or any undertaking on his part to enter into a formal agreement on or before August 23. In support of its contention that an existing contract barred an elec- tion, the Intervenor offered in evidence a document dated August 5, 1954, as a contract executed on that day by the Intervenor and the Employer. The alleged contract contained the signatures of Robert Goldman, Roy Nemzer, the other principal officer of the Employer, and I. N. Horowitz and Harry Wasserman, president and secretary of the Intervenor, respectively.4 Harry Wasserman, secretary and business representative, testified that a contract was signed between noon and 1 p. m. on August 5. Wasserman further testified that at 3: 30 that afternoon at a meeting with the employees on the plant premises, he informed them that a contract had been signed. He did not display the agreement to the employees. On the contrary, he ad- mitted that he may have had only a working copy with him, although according to the testimony of Goldman, the agreement had just been signed in the plant office. He also testified that he read and discussed with the employees each of the 24 articles and wage schedule contained in the agreement, only to change his testimony in that regard a mo- ment later when it was brought to his attention that the meeting lasted only about 45 minutes. Moreover, Wasserman admitted that he had not told the employees that he, Wasserman, had just then signed an agreement, or even indicated when an agreement had been signed. Goldman, who initially was uncertain as to the date on which the contract was executed, admitted that he told the employees at a meet- ing he had with them on August 5 that he had merely entered into a stipulation with the Intervenor to sign an agreement but that one had not in fact been signed. Although his uncertainty as to the date on which the contract was signed was ultimately resolved in favor of August 5 as the proper date, he cast additional doubt on this testi- mony by his further testimony that on August 11, he advised employ- ees that if they joined either the Petitioner's organization or the Inter- venor's organization or any union, he would have to close the plant. On the other hand, employees Cortez and Vasquez, who testified on behalf of the Petitioner, stated that at the meeting of the employees with Wasserman, Wasserman did not say that he had entered into an agreement with the Employer, but that he had a contract with him and if the employees wanted to be represented by Local 222, he would have the Employer sign the agreement. Both witnesses added that they told him that the employees did not want Local 222, whereupon s There is no evidence in the record as to which of the Intervenor 's officers possess the authority to execute a collective -bargaining agreement. Although the contract contained the signatures of the Intervenor's president, Horowitz, there is no evidence in the record that Horowitz executed the agieement on August 5. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wasserman left the meeting exclaiming that "he wasn't trying to shove it down us," and that "it was O. K. with him." The Board has held that a party or parties claiming a contract as a bar must sustain by a preponderance of the evidence the burden of proof that the contract was fully executed at the time alleged, and before demand for recognition was made by the petitioner a A con- tract duly executed, signed and dated received in evidence would, if unchallenged, make a prima facie case as to the date of its execution and signing. However, if evidence of sufficient probity and weight is introduced overcoming the prima facie case established by the contract itself, then the party or parties, claiming the contract is a bar, must meet and overcome such evidence. In view of the character of the evi- dence in the record on the issue of the contract's execution date, we conclude on the basis of the entire record that the Intervenor has not sustained the burden of proof on this issue and has failed to establish that the contract in question was, in fact, signed before the filing of the petition herein on August 6 and before the receipt by the Employer of the Petitioner's claim to recognition as the employees' bargaining representative. We find, therefore, that the contract in question is not a bar to this proceeding. Accordingly, 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. 4. We find in accord with the agreement of the parties that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Brook- lyn, New York, children's novelties manufacturing plant, including shipping employees, but excluding office clerical employees, watch- men, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] CHAIRMAN FARMER took no part in the consideration of the above Decision and Direction of Election. 5 Denr4s-Mitchell Industries, 101 NLRB 846. SAM'L BINGHAM'S SON MFG. COMPANY and LOCAL 388 OF THE INTERNA- TIONAL MOLDERS AND FOUNDRY WORKERS UNION, AFL. Case No. 7-CA-956. February 7,1955 Decision and Order On March 23, 1954, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 111 NLRB No. 82.