Allen B. Dumont Laboratories, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1950

88 N.L.R.B. 1296 (N.L.R.B. 1950)

In the Matter of ALLEN B. DUMONT LABORATORIES , INC., EMPLOYER
and LOCAL 303, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR-
CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-
CIO), PETITIONER
Case No. 2-RC-1589 .Decided March 20, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held in this case on Novem-
ber 28, 1949, at New York City, before Merton C. Bernstein, hearing
officer. Thereafter, on January 20,1950, the Board ordered the record
reopened, and a further hearing was held at the same place on
February 13, 1950, before Bernard L. Balker, hearing officer. The
rulings of the hearing officers made at the hearings, except as noted
in paragraph numbered 3 below, are free fron>_ 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 National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
3. The question concerning representation :
At the first hearing, the Employer, seeking to have the Petitioner
disqualified as a collective bargaining representative, attempted to
prove that Theodore Wos, an alleged supervisor, had actively partici-
pated in the Petitioner's organizational efforts at the Employer's
plants and had solicited membership and application cards for the
Petitioner. The hearing officer sustained objections to this line of
inquiry. The Board ordered the record reopened for the receipt of
such evidence." The record at the second hearing shows that Wos was
a member of an organizing committee for the Petitioner and had
served as acting president of the Petitioner for several weeks before
October 3, 1949. There is no evidence in the record that Wos ever
'See The Toledo Stamping & Manufacturing Company, 55 NLRB 865; Robbins Tire &
Rubber Co., Inc., 72 NLRB 157. For reasons stated in his dissenting opinion in the
Robbins case, Mr. Houston noted his dissent from the Board's order reopening the record.
88 NLRB No. 234.
1296
ALLEN B. DUMONT LABORATORIES, INC. 1297
solicited membership or application cards for the Petitioner. On
October 3, 1949, Wos resigned from the Petitioner because, according
to the Petitioner's version of the facts, he had just been promoted to a
supervisory position.2 The Employer contends that Wos had been a
supervisor since the early part of 1949. We are unable to determine
from the record the exact date on which Wos became a supervisor. We
believe there is at least a substantial doubt as to whether Wos was a,
supervisor at the time of his participation in the affairs of the Peti-
tioner. Moreover, assuming, arguendo, that Wos was a supervisor at
that time, we do not believe that fact to be sufficient to bar the Petitioner
from an election or to interfere with the employees' choice in an elec-
tion at this time in 1950. Under all the circumstances, we find, contrary
to the contention of the Employer, that the Petitioner is not tainted by
management support and is capable of serving as the collective bar-
gaining representative of the employees involved herein a
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. The appropriate unit :
The Employer operates six closely integrated plants in the vicinity
of Passaic, Clifton, and East Paterson, New Jersey, where it is engaged
in the manufacture of television sets, electronic instruments, and
allied products. The parties are in agreement that' the appropriate
unit should consist of all production and maintenance employees at
these plants, excluding office, clerical, confidential, and professional
employees, and supervisors as defined in the Act. However, the Em-
ployer contends, contrary to the position of the Petitioner, that cer-
tain watchmen are not guards within the meaning of Section 9 (b) (3)
of the Act 4 and should be included in the unit.
At each of the Employer's plants there are three shifts of employees
classified as watchmen. On all shifts at the East Paterson plant and
on two of the shifts at another plant, the watchmen are supplied to
the Employer by the Burns Detective Agency, an independent contrac-
z The record is clear that Wos took no part in the affairs of the petitioner after October
3, 1949.
311fere membership in a petitioning union ( California Packing Company, 59 NLRB 941)
or the holding of office therein ( Charlottesville Woolen Mills, 59 NLRB 1160 ) is not suffi-
cient to warrant dismissal of the petition . See also Jackson Daily News, 86 NLRB 729.
Alaska Salmon Industry , Inc., 78 NLRB 185, relied upon by the Employer in its supple-
mental brief , is distinguishable . In that case the Board dismissed the petition because a
number of supervisors were responsible for the formation of the petitioner , served as officers
of the petitioner , and had openly solicited membership in the petitioner.
4 This section 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 . . .
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
;tor. Although these watchmen are not employees of the Employer,
they do the same work as the other watchmen. Each plant is enclosed
'by a fence, and the watchmen are stationed at the main entrances.
'Their principal function is to check employees' identification badges
and to prevent unauthorized persons from entering or leaving the
-plants. The Employer's rules require that employees have special
-authorization to leave the plants during working hours or to carry
packages out of the plants ; the watchmen enforce these rules. All
-first shift watchmen wear uniforms furnished by the Employer.
Watchmen on duty at times when production shifts are not working
-make regular rounds of the plants to check on fires and the presence
.of unauthorized persons.
We are of the opinion that employees classified as* watchmen at
Beach of the Employer's plants are guards within the meaning of the
Act, and we shall exclude them from the unit.'
We find that all production and maintenance employees of the
Employer at its plants in Passaic, Clifton, and East Paterson, New
Jersey, excluding office, clerical, confidential, and professional em-
ployees, guards,6 and supervisors 7 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.
5. The determination of representatives :
At the first hearing, the Employer contended that its operations
were-expandiiig'-and'that no election should be directed-at this time.
The record discloses that the Employer now has approximately 1,600
employees in its various plants, but expects to increase production.
However, as the Employer cannot predict with any reasonable ac-
curacy when or how many new employees will be employed, and as the
present job classifications are completely representative of any pro-
spective employment peak, we find that an election may properly be
held at this time."
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30 days
from the date of this Direction, under the direction and supervision
5 Mac Smith Garment Company , Inc., 83 NLRB 780; 0wens -Illinois Glass Company, 82
NLRB 205; The Clark Thread Company, 79 NLRB 542.
Excluded under this category are all employees classified as watchmen.
7 The parties agreed , and we find , that all employees classified as group leaders are not
supervisors and are included in the unit.
9 Western Electric Company , Inc., 84 NLRB 552; General Motors Corporation, etc.,
82 NLRB 876.
ALLEN B. DUMONT LABORATORIES, INC. 1299
of the Regional Director for the Region in which this case was heard,
and subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations, among the employees in the unit found
appropriate in paragraph numbered 4, above, who were employed
during the payroll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said payroll 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, for purposes of collective bargaining, by
Local 303, International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America (UAW-CIO).
MEMBER STYLES took no part in the consideration of the above
Decision and Direction of Election.
882191-51-83