The Midvale Co.

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Midvale Company and Midvale Guards Association, Peti= tioner. Case No. 4-RC-9705. October 19, 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 Chester S. Montgomery, hear- ing officer. 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 Petitioner seeks a unit of guards employed at the Em- ployer's plant at Nicetown, near Philadelphia. The Employer con- tends that the petitioning Association is affiliated with Federal Labor Union Local 18887, AFL, which represents-the Employer's production and maintenance employees, hence cannot be certified to represent a unit of guards within the meaning of Section 9 (b) (3) of the Act. The Association held its first meeting,on the afternoon of April 26, 1955, after Gray, one of those employed as a guard, learned that a group of guards had been laid off by the Employer that morning. Earlier, in March or April, one guard had been laid off, as a result of which Gray had inquired of Dever, president of the Federal Union, concern- ing the possibility of organizing a union for guards. The April 26 meeting of the Association was held in the meeting room of the Fed- eral Union. For its use Gray got permission from Dever. Gray in- structed one of the guards laid off that morning to telephone a list of 'B and C shifts guards about the meeting. Approximately 20 guards attended, including about 5 who had been laid off. Gray was elected president, and Reiff, who had been discharged as a guard that morn- ing, secretary. The record shows that no members or officers of the Federal Union attended this organizational meeting. Just before the meeting, according to the testimony of one guard who attended, Dever came to the door and said to those congregated there that he had in- quired of management and was told that his Union was not per- mitted to represent guards. Weimann, vice president of the Federal Union, who was with Dever, testified that Dever also said that the Federal Union "could do nothing more for them" but that they could ,organize themselves. Weimann also testified that he had personally interceded with management for the first guard discharged because he was a friend. On May 2, at the regular meeting of the Federal Union, the laid- off guards were invited to attend. The minutes of this meeting, which are in longhand and capitalized and punctuated, as copied, contain the following lines : 114 NLItB No. 73. THE MIDVALE COMPANY 373 how the 14 guards took affidavits before the N. L. R. B. for un- fair labor practice. It may be months before the case actually comes to a hearing. how we intend to fight the case for the guards. for the purpose of organizing Motion on floor to assist the guards financially or otherwise . . . carried unanimously ... The italicized portions are quoted by the Employer in its brief in sup- port of its position that the Association is directly or indirectly affili- ated with the Federal Union. No meaning is assigned by it to the `words "for the purpose of organizing," which are confusing in the context. The Association takes the position that the financial assist- ance referred to was for laid-off guards, most of whom were older men who had been union members before the 9 (b) (3) provision was added to the Act in 1947. Weimann, who took the minutes, testified that that was the sense of the meeting. Meetings of the Association were held on May 31, when $1 dues and a $1 initiation fee were voted and seniority problems discussed, and on June 22, when a constitution was adopted which defines the membership as "employees working at The Midvale Company ... ex- clusively as guards." The remaining officers and a replacement for Reiff, because he was no longer eligible for membership, were elected at the June 22 meeting. Both these meetings were held at the post of the Veterans of Foreign Wars. At the May 31 meeting it was voted to send the Federal Union a letter of thanks "for their thoughtfulness" to the Association. Gray testified that this was intended for the use of the union hall at the first meeting. The record shows that shortly after the April 26 meeting of the Association, membership cards were mimeographed at the Employer's plant by Weimann, after Gray asked how he could get some cards, but it shows no intervention by representatives or members of the Federal Union in getting the cards signed and witnessed . Gray testified that he personally took the cards to each guard and saw each sign. He also testified that Reiff appears on all of the cards as the witness. Accord- ing to Gray, Reiff signed some at the time the applicants signed and some afterward. Reiff was not called to testify by either party. When all the cards had been signed, Gray turned the cards over to Weimann, who in turn gave them to Davis, the attorney for the Asso- ciation as well as for the Federal Union. Gray testified that he em- ployed Davis as attorney for the Association after Davis was recom- mended by the officers of the Federal Union, and that some of the union officers accompanied him to Davis' office about April 29 for the purpose of assisting the laid-off guards in filing unfair labor practice charges, but that they did not accompany him to subsequent meetings with Davis in connection with initiating this representation proceed- ing. Denials that the Federal Union agreed to pay the Association any money or to pay Davis' fee were not refuted. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer contends that there is an unlawful affiliation between the Union and the Association, within the meaning of the statutory provision and the Mack Manufacturing Corporation decision,' but that if the Board rules to the contrary, the case should be remanded for further testimony in connection with the membership cards and their execution. At the hearing the Employer filed a subpoena daces teem for these cards, which was revoked by the hearing officer. The Board then denied a request to appeal that ruling. Later in the hear- ing, at the request of the Petitioner, the hearing officer read into the record the mimeographed legend on the membership cards-applying for membership in the Association and authorizing it to bargain col- lectively-stated that there were 19 of such cards on file with him, that each card was signed by a different individual, and that each was wit- nessed.' The Employer argues that, as 19 is the number of guards sought to be represented by the Petitioner (that is the total guard complement, including the captain, 3 sergeants, and 15 guards), no basis existed for protecting the cards from inspection by the Employ- er. It also notes'that the Board in the Mack case, above, considered as evidence of affiliation the fact that a production and maintenance union committeeman had solicited and witnessed the cards. Here the evidence shows just the contrary-no assistance from the produc- tion and maintenance union in the solicitation and witnessing of the membership cards. The Employer, although it might have subpenaed any additional guards it chose, including Reiff who witnessed the cards, 'did not do so. It introduced no testimony to refute the specific testimony offered by the Petitioner. On this state of the record we cannot say that the Employer has been prejudiced by the revocation of the subpoena daces tecum and the enforcement of the Board's cus- tomary rule holding such cards in confidence in representation cases. On the broad question of affiliation between the two organizations, we conclude that no affiliation as proscribed by the statute has been -shown in this case. It is, of course, clear that the Federal Union was attempting to aid those guards who were laid off or discharged, and 'did assist them in filing unfair labor practice charges. However, its assistance to the new guard association, as distinguished from those `laid"off, seems to have been limited to advice concerning organization, the recommendation of an attorney, and, tangibly, the use of a meet- ing room for one meeting and the mimeographing of membership card forms. JAs a practical matter it would seem that assistance of this type inay be'anticipated between employee groups and is not, without more, .indicative, of "indirect affiliation" within the meaning of Section 9 (b) of the Act. Accordingly, we find on this record that the Peti- tioner is labor organization which does not admit to membership, ;. 1107; NLRB 209., THE BERKLINE -CORPORATION 375 and is not affiliated directly or indirectly with an organization which admits to membership, employees other than guards.' 3. A 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 Petitioner would include, and the Employer exclude, the three guards who are "sergeants" and in charge of the main gate desk on the respective shifts. They agree that the captain, who works from 8: 30 to 5, is a supervisor. Fifteen guard employees are classified as patrolmen. The breaks between the 3 shifts occur at 7 in the morning, 3 in the afternoon and 11 in the evening. The number of patrolmen on each shift does not appear. Testimony that the sergeants are in full charge in the absence of the captain and that they effectively rec- ommend disciplinary action concerning the patrolmen on their respec- tive shifts was not refuted. We therefore find the sergeants to be su- pervisors within the meaning of Section 2 (11) of the Act and shall exclude them and the captain from the unit. We find that all plant guards employed by the Employer at its plant at Nicetown, Philadelphia, Pennsylvania, but excluding all other employees and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] See Mack Manufacturing Company, 108 NLRB 1181. The Berkline Corporation and United Brotherhood of Carpen- ters and Joiners of America, AFL, Petitioner. Case No. 10-RC- 3179. October 12,1955 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 Edwin R. Hancock, 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 this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. ' The Employer requests that the Board determine the sufficiency of the Petitioner's showing of interest . Such determination has been made and we are satisfied administra- tively that the showing of interest is sufficient. • 114 NLRB No. 81. -