American Cystoscope Makers, Inc.

National Labor Relations Board - Board Decisions

May 17, 1945

61 N.L.R.B. 1226 (N.L.R.B. 1945)

In the Matter of AMERICAN CYSTOSCOPE MAKERS, INC. and UNITED
ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA, LOCAL 1225,
CIO
Case No. d-85255.Decided May 17,1915
Satterlee d Warfleld, by Donald W. Smith, of New York City, for
the Company.
Protter & Bagley , by Julius E . Bagley, of Brooklyn , N. Y., for the
Union.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon a petition duly filed by United Electrical, Radio & Machine
Workers of America, Local 1225, CIO, herein called the Union, alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of American Cystoscope Makers, Inc.,
New York City, herein called the Company, the National Labor Rela-
titons Board provided for an appropriate hearing upon due notice
before Richard J. Hickey, Trial Examiner. Said hearing was held
at New York City, on January 26, 1945. The Company and the
Union appeared and participated. All parties were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. At the hearing, the
Company moved to dismiss the petition herein and the motion was
referred to the Board. For reasons hereinafter appearing, the mo-
tion is hereby denied. Subsequent to the hearing the Company moved
to correct the record in certain respects. This motion is hereby granted.
The Trial Examiner's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. All parties were afforded an op-
portunity to file briefs with the Board. The Company's request for
oral argument made at the hearing is hereby denied.
Upon the entire record in the case, the Board makes the following :
61 N. L. R. B., No. 201.
1226
AMERICAN CYSTOSCOPE MAKERS, INC.
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
1227
American Cystoscope Makers, Inc., is a New York corporation hav-
ing its principal office in New York City. The Company is engaged
in the manufacture, sale, and distributiton of medical, optical and sur-
gical instruments, aircraft reflector sights, torpedo directors, and Naval
Ordnance fire control equipment. It operates plants in New York City,
and a subsidiary corporation American Catheter Corp., in Portches-
ter, New York. During 1944, the Company's purchases of raw mate-
rials exceeded $1,000,000 in value, of which approximately 90 percent
was shipped to its New York City plants from points outside the State
cf New York. During the same period, products finished at its New
York City plants exceeded $1,000,000 in value, of which approximately
90 percent was shipped to points outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America, Local 1225,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated December 12, 1944, the Union notified the Company
that it represented a majority of the Company's guards and requested.
a conference for the purpose of collective bargaining. On December 16,
1944, the Company replied that, inasmuch as guards were specifically
excluded from their existing contract covering production and mainte-
nance employees, it would not recognize the Union'
The Company reiterates its position, asserting that its contract with
the Union estops the Union from representing the guards. In our
opinion, however, the mere exclusion of these employees from the
coverage of the contract does not constitute a waiver of the Union's
right to represent them. Accordingly, we find that no bar exists to this
proceeding.2
A statement of a Board Field Examiner, introduced into evidence at
the hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate .3
I At the hearing the Company stated that its refusal to recognize the Union was further
based upon the grounds discussed in Section IV, infra.
2 Matter of Chrysler Corporation, New Castle Division , 55 N. L R B. 1215
1 The Field Examiner reported that the Union submitted 11 authorization cards , and that
there were 14 employees in the alleged appropriate unit.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit of guards, excluding the captain, sergeants,
and other supervisory employees. While agreeing to the exclusion of
the captain and sergeants, the Company, nevertheless, challenges the
propriety of the proposed unit on the grounds that guards are part of
management and its supervisory force, and their representation by the
Union, which now represents the Company's production and mainte-
nance employees, contravenes public policy.
The Company employs at its Lafayette and York Avenue plants, 14
guards who, under the supervision of the captain and two sergeants,
are charged with the protection of property and maintenance of
order.4 They are armed and uniformed, but are neither militarized
nor deputized.5 Guards receive an hourly rate of pay, and perform
the normal duties of plant-protection employees. More particularly,
they patrol the plants both inside and outside, guard restricted areas
in the plants, check on identification of employees entering or leaving
the plants or restricted areas, register visitors, deny unauthorized per-
sons and vehicles access to the plants, spot-check the contents of pack-
ages and lunch boxes, and, when the switchboard is closed, take tele-
phone messages. While the guards also enforce the Company's rules
and regulations by reporting infractions thereof, it is clear that they
do not possess the power to hire, discharge, or affect the status of
employees, or recommend such action.
Characterizing the guards as its "eyes and . . . hands . . . in its
dealings with its employees," the Company argues that guards, in
their relations with other employees, are part of management and its
supervisory force and, as such, are employers within the meaning of
Section 2 (2) of the Act. The weakness of this argument, however,
is apparent when the precise nature of their authority is considered.
As in the Bethlehem Steel case,6 we observe in the present proceeding
that the Company's guards "do not formulate or determine the Com-
pany's labor relations policy. Their functions are unrelated to the
production process and they neither assign nor direct the work of
other employees. Without any semblance of discretion they are obli-
gated to fulfill definite duties in accordance with specific instructions.
They are without power to hire or discharge other employees or to
recommend such action. Nor is any authority vested in them to excuse
4 The Company does not maintain guards at its offices , the woodworking shop in a loft
on 63rd Street, or at its subsidiary.
The guards were demilitarized on October 11, 1944.
s Matter of Bethlehem Steel Company, 61 N. L. R. B. 892.
AMERICAN CYSTOSCOPE MAKERS, INC. 1229
or penalize employees guilty of wrongdoing. In sum, as respects other
employees, guards are merely monitors." T
The Company also contends that, in view of the nature of their
functions and the fact that the Company is engaged in vital war work,
public policy prohibits the labor organization which represents pro-
duction and maintenance employees from acting as the bargaining
agent for the guards. It asserts that the guards' affiliation with the
Union in ,,which production and maintenance employees are members
engenders conflicting loyalties. In, the Bethlehem Steel case," how-
ever, we rejected a similar contention, and we find no reason for decid-
ing otherwise in the present proceeding. There we stated :
But the unit sought here is a separate grouping of guards which,
if established, will insulate their collective bargaining from that
of other employees. Thus, their separate problems and interests,
growing out of their peculiar occupation, will be recognized, and
will not be merged with or subordinated to any interests of the
production and maintenance employees which may be in conflict.
Even in cases involving plant protection personnel who are mili-
tarized, the vitally concerned War Department has recognized
that our practice of placing such employees in segregated units
serves to obviate possible conflicts of interest.0 Moreover, we have
unmistakably indicated, and we reiterate, that we attach no
weight to the implication that membership in a union, even if
composed in part of production and maintenance employees,
tends to undermine the honesty of guards or their competence to
execute their duties satisfactorily. "Self-organization for collec-
tive bargaining is not incompatible with efficient and faithful
discharge of -duty." 10 In any event, the remedy for neglect of
duty lies in the Company's power to' discharge and discipline.
Certainly to reject the efforts of guards to obtain collective bar-
gaining rights safeguarded by the Act will not avert difficulties,
r See Matter of Dravo Corporation , 52 N. L. R. B. 322.
8 Matter of Bethlehem Steel Company , supra.
° Memorandum dated July 10, 1943, issued by the War Department as a supplement to
Circular No 15 states , in part, as follows :
Subject: Plant guards.
1. It has been reported to this headquarters that labor officers are interpreting Circular
No. 15, this headquarters , 17 March 1943, subject, "Auxiliary Military Police," as pro-
hibiting membership of plant guards enrolled as Auxiliary Military Police in the same
trade union local as that representing production and maintenance workers.
2. Paragraph 6 (h) (2), Circular No. 15, presents applicable War Department policy on
plant guard labor representation.
3. In the event that plant guards enrolled as Auxiliary Military Police desire to be
represented in collective bargaining with the management , they should be represented by
a bargaining unit other than that representing the production and maintenance workers.
However, in such event , both bargaining units may be affiliated with the same trade union
local, provided they are, in fact, separate bargaining units.
10 Matter of Dravo Corporation, supra. See also Matter of Chrysler Corporation, 44
N. L. R B. 881, 886.
639678-45-vol. 61-79
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if any, arising solely from their union allegiance. We are per-
suaded that the unit sought is appropriate and will fully effectuate
the policies of the Act. In reaching this conclusion, we are not
unmindful that this country is at war and the Company is engaged
in war production, and we have fully considered the national wel-
fare. That steady and unimpeded flow of commerce which the
Act is designed to maintain by the encouragement of the orderly
procedures of collective bargaining is doubly essential in time of
war. It is in keeping with the policies of the Act and it is in the
public interest to foster and protect collective bargaining by
guards, thereby promoting a practice necessary to the amicable
settlement of labor disputes and eliminating obstructions to
commerce.
Accordingly, we find that all guards employed by the Company,
excluding the captain, sergeants, and other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Union requests that the pay roll for the period ending December
29, 1944, be used to determine eligibility to vote at the election, while
the Company requests that the pay roll for the period immediately
preceding the election be used. We find, however, that insufficient
reasons are present to warrant deviating from our usual practice.
We shall, therefore, direct that the question concerning represen-
tation which has arisen be resolved by an election by secret ballot
among the employees in the appropriate unit who were employed
during the pay-roll period immediately preceding the date of the
Direction of Election herein, subject to the limitations and additions
set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with American Cysto-
scope Makers, Inc., New York City, an election by secret ballot shall
be conducted as early as possible, but not later than thirty (30) days
AMERICAN CYSTOSCOPE MAKERS, INC. 1231
from the date of this Direction, under the direction and supervision
of the Regional Director for the Second Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, 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, and including employees in the armed forces of
the United States who present themselves in person at the polls, 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, to determine whether or not they desire to be represented
by United Electrical, Radio & Machine Workers of America, Local
1225, CIO, for the purposes of collective bargaining.
Mr. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Direction of Election.