United States Gypsum Co.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paragraph 2 (f) is amended by changing the period appearing at the end of the paragraph to a comma, and by adding the words "as modi- fied by the section entitled `Remedy' of the Board's Supplemental Deci- sion and Order Amending Order Amending Order." The paragraph of the Notice which contains reference to the date of "December 4, 1963" is amended by striking that date and substituting the date "August 31,1963." MEMBER JENKINS, concurring in part : I have grave doubts about the correctness of my colleagues' position that the Supreme Court's decision in Textile Workers Union of Amer- ica v. Darlington Manufacturing Company, 380 U.S. 263, is not appli- cable to cases involving alleged violations of Section 8(a) (5) for clos- ing a plant without prior bargaining. However, I need not reach that issue here. I stated in my original opinion in this case that I agreed that Respondent violated Section 8(a) (5), but rested that decision on the clearly established fact that the bargaining it engaged in leading to the last contract with the Union was sham bargaining and not under- taken in good faith. I reaffirm that opinion here, including the remedy I there proposed. United States Gypsum Company and International Union of Elec- trical Radio & Machine Workers, AFL-CIO , Petitioner. Case No. 8-RC-5571. May 14, 1965 ORDER AMENDING CERTIFICATION Following a Board-directed election conducted on November 6, 1964, the Petitioner was certified as the exclusive bargaining representative of "all production and maintenance employees at the Employer's War- ren, Ohio, plant, on Phoenix Road, including the sample department operator, storekeeper, all shipping department operators, the packing department operator, and all production department operators, but excluding all office clerical employees, guards, professional employees, the works manager, superintendents, foremen, head machinist, head mechanic, and all other supervisors as defined in the Act." On November 13,1964, the Petitioner filed with the Board a motion to amend and clairfy the unit so as to include four employees, classi- fied as "firemen-watchmen." The Employer, on November 23, 1964, filed a separate motion to amend and clarify so as to exclude the fire- men-watchmen from the unit on the ground that they are guards within the meaning of the Act. The Board having considered the motions and having decided that they raised substantial and material issues of fact, 152 NLRB No. 62. UNITED STATES GYPSUM COMPANY 625 issued an "Order Directing Hearing" on December 4,1964. A hearing was held on January 6,1965, before Hearing Officer Nora Friel. There- after, the Employer and the Petitioner filed briefs in support of their positions, and the matter came on to the Board for consideration. The record shows that the Employer employs four employees whom it classifies as "firemen-watchmen." They are employed as such only during the winter months when heat is required in the plant (approxi- mately from October 1 to May 1). During the remainder of the year, two of them are laid off, and the other two are employed in the produc- tion department. All four are licensed by the State of Ohio as boiler- firemen, having qualified by serving 3 years as boilerroom helpers and then passing an examination given by the State. The boilerroom operation is continuous, 7 days per week, during the months when heat is needed. During the week, a fireman-watchman is on duty on each of the three daily shifts, and the firemen-watchmen work only as boilerroom employees. Each man works three weekends in a row, and has the fourth weekend off, so that each weekend there are three firemen-watchmen working, one to each shift, and the fourth man is off. They are not uniformed, armed or deputized. They are hourly rated, and are on the same payroll as all hourly rated plant employees in the production and maintenance unit. They work under the general direction of the plant engineer and are responsible directly to the maintenance foreman or maintenance mechanic when a shift is working. On weekends during the heating season, if, as is usually the case, the plant is not in operation, the employees in question have duties in addition to those regularly performed as firemen. These additional weekend duties consist of making rounds of the plant's 18 clock stations located within a radius of 750 feet from the boilerhouse. On these rounds they carry a clock which is punched at each station. They make about seven tours during the course of each shift, the first consist- ing of a complete round, and the remaining tours covering half of the clock stations. The first tour takes about 20 minutes, and each of the others takes about 10 minutes. Before making a first round, the fire- man-watchman on duty reports to the boilerroom and takes care of his fireman duties. He also returns to the boilerroom after each tour and remain for approximately 1 hour before beginning the next tour. If at any time on the weekend there are a substantial number of employees working, or if a supervisor is present in the plant, the firemen-watch- men do not make tours of the clock stations.' 'When necessary , the firemen -watchmen may be required to open the main gate for authorized persons . However, it appears from the record that such is rarely necessary, as all supervisory personnel have their own keys to the main gate The last man on duty on Sunday must open the gate for the Monday morning shift and the Burns guard. 7 89-730-G 6-v of 152-41 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the week Burns guards, who are employees of, and supplied by, the Burns Detective Agency, make tours of the clock stations in the same manner as do the firemen-watchmen on weekends. They are uni- formed but not armed or deputized. There are four such Burns guards. Two of them man the gates during 16 hours (two shifts) each day, checking visitors and trucks in and out of the plant, and a third makes complete rounds of the plant's 18 clock stations. The fourth Burns guard is a weekend relief man. No guard is on duty on the third shift on the normal workdays of the plant and the fireman-watchman on duty during that shift during the week is not required to make tours. During the winter season the Employer has only three Burns guards. It is undisputed that the Burns guards have the authority to enforce plant rules with respect to employees or other persons engaged ' in unauthorized conduct, or found in unauthorized areas of the plant. However, it appears that the firemen-watchmen do not have the same authority. The one fireman-watchman called as a witness testified that although he would feel it incumbent upon him as an employee to report unauthorized persons, he had never done so,2 had received no instructions as to what procedure to follow in the event of such occur- rence, and had not been informed that he had any such authority or responsibility. He stated that, although he keeps his eyes open for fires, lights, and machines that may have been left on, etc., he had received no instructions with regard to making such "safety checks." He further testified that he did not have any authority to enforce plant rules against employees, as do the Burns guards, and that he had never been instructed as to the nature of any plant rules. The works manager of the plant testified that in the Employer's opinion the firemen-watchmen have authority to enforce company rules on unauthorized persons or employees found in the plant during nonworking hours. He did not claim, however, that the firemen- watchmen had ever been specifically instructed as to such duties. A z Our dissenting colleague alludes to one occasion on which the fireman -watchman called as a witness " told an employee he was in an area he should not be." The witness testified that on that occasion he had just completed his rounds and had stopped to talk to an employee be recognized as a truckdriver The works manager approached and asked him who the other man was, and he replied he did not know, and that it turned out this employee "had a truck being loaded in the lower shipping . . . and he was just wandering around through the shop. " He first stated that he approached the truckdriver to tell him he should put on a pair of safety glasses while in the plant area. He later testified that after the works manager approached and questioned the man's presence , he told him to return to the shipping area Still later he testified that he would have told him to leave the area even if the works manager had not approached. We do not feel that this one incident, supported as it is only by ambiguous testimony, can be relied on to establish that the firemen-watchmen had authority to exclude or even order unauthorized employees out of plant areas The fact remains that the witness told the truckdriver to leave only after the works manager had questioned his presence in the plant area , and the same witness testified flatly elsewhere in the record that he had never reported any unauthorized person , theft, or infraction of plant rules , although he has seen employees break plant rules and engage in theft that "didn't amount to much." UNITED STATES GYPSUM COMPANY 627 copy of general instructions to firemen-watchmen was placed in evi- dence by the Union. It does not contain any instructions dealing with unauthorized persons or plant rules. The Employer contends that the firemen-watchmen herein are guards within the meaning of the Act, while the Petitioner contends that they are not. Section 9(b) (3) of the Act provides: "that the Board shall not decide that any unit is appropriate ... 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 . . ." As the Board noted in the Walterboro decision,3 "the legislative history [of this Section] demonstrates that Congress was concerned with the possibility that if guards were included in production units their loy- alty to fellow union members might conflict with their duty to report to their employer derelictions of duty or violations of rules by employees." 4 We find merit in Petitioner's position that the firemen-watchmen's weekend duty of making rounds of certain clock stations does not con- stitute them guards within the meaning of the Act. Moreover, in per- forming such duties, they do not wear uniforms; they are not armed or deputized; they have received no specific instructions and have no specific routine for making safety checks, checking for the presence of unauthorized persons, the loss of property, the enforcement of plant rules, or reporting same; and, they are not required to make rounds when employees are working. Further, such duties are clearly sub- ordinate to their duties and responsibilities as boilerroom employees.5 In view of all these factors, we find that the performance of watchman duties by the firemen-watchmen, in the particular circumstances of this case, does not in any realistic sense give rise to a conflict of loyalties between that owed by the firemen-watchmen to their employer and that owed by them to their fellow employees or union members. On the basis of the foregoing, we find that, even in their limited capacity as so-called watchmen, the firemen-watchmen are not employed as guards for the purpose of enforcing plant protection rules 8 Walterboro Manufacturing Corporation, 106 NLRB 1383, 1384 '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 No 3020, 80th Cong, 1st Sess, 1947, Section 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 subject to influence or control of unions " In describing the classifications to be excluded for this reason, the report states that "plant policemen and guards prevent disorders and report misconduct of employees and of unions and their members." H R No. 245, 80th Cong., 1st Sess, 1947, p 16 Section 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. 6 The Union 's witness testified that when necessary he foregoes rounds to tend to the boilers 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against employees and other persons. Hence, we find that the firemen- watchmen are not guards within the meaning of the Act, and we shall amend the certifications of the appropriate unit to include them. ORDER IT IS HEREBY ORDERED that the certification heretofore issued in Case No. 8-RC-5571 be, and it hereby is, amended to read as follows : IT IS HERESY CERTIFIED that,6 pursuant to Section 9 (a) of the National Labor Relations Act, as amended, International Union of Electrical, Radio & Machine Workers, AFL-CIO, is the exclusive bargaining representative for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment, and other conditions of employment, in a unit consisting of all production and maintenance employees at the Employer's Warren, Ohio, plant on Phoenix Road, including the sample department operator, storekeeper, all shipping department operators, the packing department operator, all produc- tion department operators, and the firemen-watchmen, but excluding all office clerical employees, guards, professional employees, the works manager, superintendents, foremen, head machinist, head mechanic, and all other supervisors, as defined in the Act. MEMBER JENBINS, dissenting: I disagree with my colleagues' conclusion that the firemen-watchmen are not guards within the meaning of Section 9(b) (3) of the Act. As my colleagues note, in addition to their boilerroom work, the employees in issue are required to make regular rounds of the Employ- er's plant, punching at each of the 18 stations a watchmen's clock. First, it seems clear that during these rounds the fireman-watchman checks the areas for fires, water, and safety hazards. Moreover, I think the record here warrants holding that in addition to the above checks, these employees are expected to and do perform other functions con- clusively establishing their status as guards. Thus, the Employer's works manager testified that in making his rounds the fireman-watch- man is required to check for the presence of persons, including employ- ees, not authorized to be in the area, and to order them out. This wit- ness also testified that the firemen-watchmen have the duty, inter alia, of reporting pilfering by employees. The fireman-watchman called as a witness by the Union, although asserting that such were not part of his watchman's duties, admitted that he felt obligated to order employ- ees and other persons out of areas in which they were not authorized to be; that in his opinion this was one of the reasons he made the rounds; that on one occasion he told an employee he was in an area he should not be; and that he similarly felt obligated to report thefts by employees, and to make certain employees observed company safety a This amended certification is not to be construed as a new certification. RABER-KIEF, INC. 629 rules. Moreover, it is clear from this record that the firemen-watch- men have the duty as such to deny admittance to the plant to unauthor- ized persons. Keys to the plant, including those to the gate, are entrusted to the firemen-watchmen, and the fireman-watchman wit- ness admitted that when someone rang the gate buzzer he would admit them only if that person was authorized to be in the plant. On this record as a whole, I must conclude that the employees in issue do enforce plant protection rules against both employees and other persons and are guards within the meaning of the Act. There- fore, I would exclude them from the certified unit as required by Sec- tion 9 (b) (3) of the Act. CHAIRMAN MCCtLLOCH and MEMBER ZAGORIA took no part in the consideration,of the above Order Amending Certification. United Brotherhood of Carpenters & Joiners of America, Local 1281, AFL-CIO [Raber-Kief, Inc.] and Ivan DiBoff. Case No. 19-CB-950. May 17,1965 DECISION AND ORDER On January 14, 1965, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent consistent with this Decision and Order. The complaint alleges that, by refusing between June 24 and Sep- tember 5, 1963, to refer Ivan DiBofe for employment with Raber-Kief, Inc., pursuant to an exclusive hiring hall agreement, because of antag- onism against DiBoff on the part of Business Agent Powell, the 152 NLRB No. 48.