American District Telegraph Co. of the Cleveland Co.

National Labor Relations Board - Board Decisions

Sep 14, 1966

160 N.L.R.B. 1130 (N.L.R.B. 1966)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT prohibit our employees from engaging in union activities on
plant premises during nonworking time when employees are normally at
the plant.
WE WILL NOT question our employees about their union activities or the
union activities of others so as to interfere with the right of our employees
to engage in union activities.
WE WILL NOT refuse to grant benefits to employees just because they are
engaged in union activities or have joined a union.
WE WILL NOT promise or grant employee benefits in order to discourage
employees from joining or assisting a union.
WE WILL NOT engage in , or create the impression of, surveillance of the
union activities of our employees.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in their right to join or assist International Union,
United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, or any other labor organization.
PRECISION PRODUCTS & CONTROLS, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 110
West Fifth Street, Fort Worth, Texas 76102, Telephone 335-4211, Extension 2145.
American District Telegraph Company of the Cleveland Com-
pany and Communications Workers of America , AFL-CIO,
Petitioner . Case 8-IRC-6105. September 14, 1966
DECISION AND DIRECTION OF ELECTION
Upon a, petition duly filed under Section 9(c) of the National Labor
Relations Act, as amended , a hearing was held before Hearing Officer
Bernard Levine. The Hearing Officer' s rulings made at the hear-
in are free from prejudicial error and are hereby affirmed. The
Employer and the Petitioner filed briefs.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
Upon the entire recoil, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
160 NLRB No. 82.
AMERICAN DISTRICT TELEGRAPH CO. 1131
2. The Labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer with the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. The Petitioner seeks to represent all full-time and part-time
servicemen 1, 2, and 31 employed in the Cleveland area at the
Employer's three central stations,2 its Hamilton Avenue shop, and
five affiliated guard stations; background music supervisor; and
porters.
'I'lie Employer contends that all of the servicemen are guards within
the meaning of Section 9 (b) (3) of the Act and under the terms of
that provision may not be represented by the Petitioner, a labor
organization which admits to membership persons other than guards.
In the event that the Board finds the S-2's to be guards as defined in
the Act, the Petitioner states that it would accept a unit excluding
then).
The Employer," an Ohio corporation with its principal office and
place of business in Cleveland, is one of a number of wholly owned
subsidiaries of American District Telegraph Company, which are
engaged in the business of furnishing to customers protective services
against industrial process interruptions, fire, and unlawful entry to
premises, by means of electric, electronic, and electromagnetic devices
that are installed and maintained by ADT.4 Most of these devices
on the customers' premises are connected to the three central stations
which receive and monitor signals. ADT also provides to a small
number of customers services which are wired to police or fire stations
or to a telephone answering service. In addition, some local alarms
provided by ADT merely activate a bell outside of customers'
hll hl dumlgs.
The following employees have some part in furnishing the fore-
going services in the Cleveland area. About 57 full-time S-1's,1 with
two exceptions,' work on the 8 a.m. to 4:30 p.m. shift Monday through
Friday, but are subject, to emergency call during other hours or on
the weekend. About 40 to 44 of them are stationed at the Hamilton
shop, and the remaining S-1's are at Cleveland East and Nest. About
1 Herein called S-i's , S-2's, and S-3's
9 The central stations are known as Cleveland Main, East , and West
3 Herein called ADT.
1 ADT in October or November 1965 , also established a new one-man division which
sells background music and communications systems.
6 The individual guard stations have no monitoring devices but are connected by tele-
phone with one of the central stations
° S-1's were classified as plant employees prior to 1960.
7 W. Irvine and Joseph Kovach are special S-1's whose duties are described below.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
36 full-time and 7 part-time S-2's are assigned to the central stations
where they provide round the clock 7-day-a-week coverage, with most
of these employees working on the second (4 p.m. to midnight) or
third (midnight to 8 a.m.) shifts. About 11 full-time and 9 part-time
S-3's, many of whom are females, work at the central stations on a
round the clock 7-clay-a-week basis, with a majority assigned to the
second and third shifts."
The hourly pay range is $2.11 to $2.98 for S-1's, $2.11 to $2.88 for
S-2's, and $2.01 to $2.73 for S-3's. The fringe benefits such as holi-
clays, vacations, and death payments are the same for all servicemen.
S-3's
The function of the S3's, who do not wear uniforms or carry guns,
is to monitor the signals received at the central stations. If there is
an indication of an abnormal condition at a customer's premises such
as a fire or a burglar alarm signal or the omission of a regularly
scheduled watchman's signal, the S-3 brings it to the attention of
his supervisor who determines whether the customer or the fire or the
police department should be notified. When a delinquent watchman,
i.e., one who for some reason fails to activate the night watch signal
according to a prearranged schedule, is not reached by telephone by
the S-3 or the supervisor, an S-2 is generally sent out to the cus-
tomer's premises to ascertain the cause of the delinquency.
S-2's
All S-2's wear uniforms with cap and badge, carry pistols, are
bonded,' and have special police commissions from the city of Cleve-
land. As already indicated, S-2's are dispatched any time of the day,
night, or week to customers' premises in response to a burglar or fire
alarm, other signals, or telephone calls directly from customers, to
determine the cause of the difficulty and, if necessary, to repair and
restore to normal operation the particular protection system in-
volved." In addition, S-2's in the course of their regular patrolling
of those premises which are not wired into a central station, stop to
investigate if there is an indication of trouble or malfunction of
equipment.
The parties stipulated to the following description of S-2 duties
with respect to burglar alarms :
When an S-2 is dispatched on a burglar alarm run pursuant
to the receipt of a signal at the central office, the cause of which
8 However, there is no S-3 on duty on the first shift at Cleveland west.
e All classifications of servicemen are covered by a blanket fidelity bond.
10 According to a list compiled by the Employer, there were, from January through
October 1965, 20;880 "emergency" assignments, of which 16,433 (78.7 percent) were made
by S-2 's, and 4 ,477 (21.3 percent) by S-1's.
AMERICAN DISTRICT TELEGRAPH CO. 1133
is either unknown or may not be determined to a certainty at
that office, his primary duty or objective is to ascertain, either
alone or together with another S-2, or together with the police,
whether an intruder or intruders are on the protected premises;
and if so, to detain the intruder or intruders. Only after this
function is performed does it become the S-2's duty to determine
whether the alarm was caused by . . . faulty protective equip-
ment or other circumstances such as an open door, an open win-
dow, or an animal intrusion, wind, or storm action, and the like.
While at times intruders are found on the protected premises,
their apprehension is infrequent. The number of apprehensions,
however, bears no relation to the number of attempted intrusions,
known or unknown, which have set off or may have set off an
alarm signal.
In contrast to earlier years when the police were called upon by
ADT in 95 percent of the burglar alarm cases, they were asked to
respond in 1964 and 1965 in about 50 to 60 percent of such cases."
In the absence of police at a customer's premises, S-2's may not fire
at an intruder except in self-defense. However, S-2's have at times
leveled their guns at intruders and have with varying degrees of
success directed them to halt. On a number of occasions when S-2's
have been instrumental in detaining intruders, or have aided the
police in apprehending them, they have been given capture awards
by ADT.12
As indicated above, it appears that S-2's may not leave the cus-
tomers' premises until they make any necessary repairs or adjustments
such as closing a window or a door or removing an obstruction to
an electric eye to restore the protective equipment to operation. In
order to verify the fact that only authorized persons are on the prem-
ises, S-2's must obtain the signature and passcard number of indi-
viduals who claim that they are the owner, his employee, or the plant
watchman or guard.13
S-i's
As noted above , the 57 S-1's, with the exception of Kovach and
Irvine, are on the day shift from 8 a.m. to 4:30 p .m. Monday through
Friday. Although S-1's in common with other servicemen are bonded,
they do not ordinarily wear a full uniform or a badge and are not
11 The ADT supervisor bases his decision as to whether to call the police on the nature
of the occupancy, such as a jewelry store, the hour of the alarm, and the location of the
premises involved.
12 Although most awards are made to S-2's, the record shows that such special S-i's as
Kovach have been among the recipients.
13 The insurance underwriters require that this procedure be followed when a certificated
installation is involved . In such cases , ADT must dispatch to the premises either two serv-
icemen or one serviceman and a policeman.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
armed.14 They are responsible for new installations, periodic inspec-
tions, and maintenance and repairs of ADT's protective equipment.
They also do stock work, material handling, and care for incoming
trucks.
According to Thomas J. Norton, the foreman of the S-1's at the
Hamilton shop, these employees normally perform the foregoing tasks
on the customers' premises. And although S-1's at Hamilton are not
called upon during or after their regular shift hours to "answer
alarms," they have been sent out after 4:30 p.m. to "check out" and
repair various types of equipment on such special occasions as
occurred in 1959 when storms caused considerable damage.
Similarly, Anthony Frank Marzola, an S-1 working in a separate
tool and supply area at Cleveland West for the past three years,
testified that he normally inspects and repairs fire and burglar alarm
equipment during his regular hours, and only occasionally after
4:30 p.m. Marzola wears the shirt and trousers of the uniform but
he does not go out to answer alarms. Zack Davis Tilton, an S-1 at
Hamilton since 1964, testified corroboratively that he had never
answered an alarm. According to Tilton, it is only on very rare occa-
sions that he works beyond his normal day shift to clear up a trouble
condition on a customer's alarm or protective device.
As stated above, S-1's made 4,447 emergency calls during the first
10 months of 1965. Procaccini defined an emergeny run as a call
involving the protective nature of ADT's business, where it is essen-
tial to investigate emergency signals promptly, to restore service
promptly, and to do anything necessary to avoid interruptions of
service for customers. Although Procaccini explained that he listed
as emergency runs by S-1's only those made after 4:30 p.m., he con-
ceded that some of the calls included in the emergency category were
made during the day shift.
According to Procaccini, ADT in September 1960, instituted a
cross-training program, which was carried out on an irregular basis,
to enable S-1's and S-2's to perform each others' functions. In this
connection, Norton testified that during the last 5 years not one
S-1 working out of Hamilton had received cross-training after 4:30
p.m. However, on cross-examination by counsel for the Employer,
Norton stated that practically all of his men had received cross-
training which involved going over technical bulletins and rules and
regulations at the Hamilton shop, and visiting a central office where
they were given an explanation of procedures. But Tilton asserted
that he had never been given instruction in S-2 work, and Marzola
denied that he had been exposed to the type of cross-training
described by Norton.
1' However , District Manager Anthony Procaccini stated at the hearing that virtually
all S-i's have received training in the handling of firearms
AMERICAN DISTRICT, TELEGRAPH CO. 1135
Special S-1's
Kovach is classified as an S-1 and is assigned to the guard station at
Hamilton where he works from 4 p.m. to midnight Monday through
Friday. Kovach, who is armed and wears a uniform and badge,
spends most of his time repairing and restoring to service equipment
at customers' premises when there are late closing alarms and trouble
closings. In investigating the latter, Kovach searches the premises if
lie does not find the customers on the premises. He also goes out on
burglar alarms and night watch service alarms.
Irvine, the only other S-1 who works regularly on the 8-hour shift
ending at midnight, is stationed at Cleveland East where he monitors
signals in the same manner do S-3's. In addition, he goes out on
burglar alarm calls and searches the premises. Although there appears
to be no indication in the record as to whether Irvine wears a uniform
or carries a gun, the Petitioner in its brief states that he does both."'
Background Music Supervisor
As noted above, about October or November 1965, shortly before
the hearing herein, the Employer established a new one-man division
which sells background music and communications systems. J. Bor-
nancin, a former S-1, was given the title of background music super-
visor with responsibility for installing and maintaining the back-
ground music systems. Although he was placed under Procaccini's
supervision, he is on a separate payroll and reports by telephone to
the general manager of the background music division which is
located in New York City. Bornancin works on the day shift Monday
through Friday, has the same fringe benefits as the servicemen, and
is paid at a higher rate than he received as an E-1. While the record
contains no evidence as to his work station, the Employer states in its
brief that Bornancin, unlike the servicemen, works in the Employer's
administrative office which is located in a building separate from the
various ADT stations.
As indicated above, the Petitioner contends that none of the classi-
fications of servicemen described above are guards within the meaning
of Section 9(b) (3) of the Act.ls In so doing, the Petitioner is asking
the Board to overrule those decisions wherein it was found that
employees, who were formerly known as guard-operators and are now
u Alan L . Bickford , an S-1 stationed at Hamilton , was assigned to Cleveland West to
work as a replacement for vacationing S-2's from May to October 1965. However, the
record shows that thereafter he returned to Hamilton where he works on the day shift
performing the S-1 tasks of installing new alarms and dismantling old ones.
ie This section provides in pertinent part, "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 . . .
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
classified as S-2's, were guards under the Act.17 It is also asking the
Board to overrule, or at least distinguish, those decisions which have
held to be guards the plant employees now classified as S-1's.ls
The Employer takes the position that, except for one Board deci-
sion 10 respecting plant employees that it is requesting the Board to
overrule or distinguish, the cases support its argument that all service-
men in any way associated with modern protective techniques are
guards under the Act.
In 1953, the Court of Appeals for the Third Circuit 20 held, con-
trary to the Board's decision in American District Telegraph Com-
pany of Cleveland, 100 NLRB 155, that Section 9(b) (3) of the Act
is not limited to guards employed to protect property belonging to
their' own employer or to guards who protect against the conduct of
fellow employees. In reaching the conclusion that Section 9(b) (3)
does not confine the concept of a guard to one who guards the prem-
ises of his own employer, the court construed the language of that
section as follows : The guard to whom the statute refers is one who
enforces rules to protect the property of "the employer"-not his
employer. These rules are enforced "against employees and other
persons," not against fellow employees. Furthermore, the duties of
a guard who comes within Section 9(b) (3) of the Act include the
protection of "the safety of persons on the [not his] employer's
premises." [Emphasis supplied by the court.] Finally, the court
pointed out that the legislative history of Section 9(b) (3) reveals
that Congress was seriously concerned with preventing the creation
of divided loyalty by not permitting guards to join "a production
workers union."
The Board adopted the decision of the court and on the basis of
the rationale therein has consistently found since 1953 that guard-
operators such as the S-2's herein are guards within the meaning of
the Act. The Board now reaffirms its agreement with the court's find-
ings as to legislative intent and statutory construction. Accordingly,
we do not find persuasive the Petitioner's argument that Senator
Taft's repeated reference to plant guards 21 shows that Congress was
concerned only with the status of plant guards as distinguished from
ADT servicemen who respond to burglar alarms and fire alarms at
customers' premises. Nor do we agree with the Petitioner's argument
17 N.L.R B. v. American District Telegraph Co. of Pa., 205 F 2d 86 ( C A. 3) ; Armored
Motor Service Company, 106 NLRB 1139 ; and A.D T. Company, 112 NLRB 80 , herein
called ADT (112).
is ADT ( 112) ; American District Telegraph Company of Cleveland Company, Case 8-RC-
2836, herein called ADT (Cleveland).
19 ,See American District Telegraph Company, 128 NLRB 345, herein called ADT (128),
wherein plant employee were found not to be guards because their duties were significantly
different from such employees in ADT ( 112) and ADT ( Cleveland).
25 N.L.R.B. v. American District Telegraph Company, supra.
21 2 Leg . Hist. 1541 , 1544, 1572 ( 1959).
AMERICAN DISTRICT TELEGRAPH CO. 1137
that the "real danger" in finding the S-2's to be guards is that a
conflict of interest with customers' plant watchmen would occur if
S-2's joined the guard union to which the watchmen belonged. We
also find no merit in the Petitioner's alternative contention that on
the basis of the evidence in the instant case the S-2's cannot be found
guards as defined in the Act. Although the Petitioner asserts that
S-2's are primarily mechanics and have only incidental and minor
duties with respect to the detention or apprehension of intruders,
the stipulation of the parties clearly states that the reverse situation
prevails, i.e., that their "primary duty or objective is to ascertain,
either alone or together with the police, whether an intruder or
intruders are on the protected premises, and if so, to detain the
intruder or intruders."
In view of the foregoing, including the fact that the S-2's are
uniformed and armed, and have as their primary duty the protection
of customers' property, we find that the S-2's are guards within the
meaning of Section 9(b) (3) of the Act.
Although Kovach and Irvine are nominally S-1's, we find that
they, too, are guards within the meaning of the Act as they, like the
S-2's, are armed and uniformed, go out on burglar and night watch
service alarms, search customers' premises for intruders, and have
been among the recipients of ADT capture awards .22
As to plant employees who are currently classified as S-1's, the
Petitioner, as already noted, asserts the S-1's herein are similar to
the plant employees who in a number of ADT ' cases 23 were not
deemed to be guards because the purpose of their visits to customers'
premises was to do installation and maintenance work on protective
equipment. However, the Employer relies on ADT (112) and ADT
(Cleveland) wherein the Board found ADT plant employees to be
guards because they had, in addition to their basic job of installation,
testing, and repair or replacement of protective equipment, the fur-
ther responsibility of responding to a number of emergency calls,
guarding the premises if necessary, and reporting any violations by
the customers' employees of the latter's rules and regulations. (1) The
Employer contends. that the emergency functions performed by the
S-1's herein are, if anything, even more pronounced than they were
in 1957 when plant employees of the Employer in Cleveland were
found to be guards because of their emergency runs. (2) The
Employer also emphasizes the cross-training program in Cleveland
22 Although Bickford performed guard duties as a substitute for vacationing S-2's, we do
not find him to be a guard as he had returned to customary S-1 duties as of the time of
the hearing.
2'American District Telegraph Company , 83 NLRB 517 ; American District Telegraph
Company of Missouri, 83 NLRB 1139 ; American Distract Telegraph Company, 89 NLRB
1228; ADT (128), supra.
257-551-67-vol. 160-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given S-1's for the purpose of eliminating interdepartmental barriers
between them and ilie S-2's. (3) The Employer further contends that
even if the S-1's did not perform emergency assignments, they should
nevertheless be found guards because their mechanical work in install-
ing and maintaining ADT's protective equipment requires the care
and trustworthiness and undivided loyalty that are the prerequisites
for properly carrying out emergency runs.
As to (1), it is clear from the record in the instant case that the
present duties of the S-1's in Cleveland are significantly different
from those of the plant employees set forth in the Board's 1957 deci-
sion. Thus, there is no evidence that the regular S-1's, who are not
uniformed or armed, have any responsibility for seeking, apprehend-
ing or detaining intruders, guarding customers' premises, reporting
any violations by the customers' employees of their rules or regula-
tions, or requesting passcard numbers and signatures from individ-
uals claiming to be on customers' premises by virtue of their status
as owner or employee. Although the S-1's make a number of emer-
gency calls to customers' premises after their regular day shift hours
or on weekends, that aspect of their work is not in any way indicative
of guard status as it appears that their tasks on such runs are limited
to restoring service quickly by making the necessary repairs to pro-
tective equipment.
As to (2), the record discloses that such cross-training as does occur
is provided for the S-1's on an irregular basis, appears to be restricted
to going over technical bulletins and observing equipment, and has
little, if any, impact on the traditional mechanical character of the
S-1's duties.
As to (3), the Board's decisions make it plain that S-1's, merely by
working on ADT's protective equipment, do not come within the
statutory definition of guards as they are not individuals who enforce
rules to protect property or the safety of persons on customers'
premises.
As the regular S-1's herein have the traditional ADT plant depart-
ment duties of installation, inspection, maintenance, and repair of
protective equipment, we conclude that these employees are not guards
as defined in the Act.
As noted above, S-3's are not uniformed or armed, and have the
function of monitoring the signals received at the central station at
which they are located. We find in agreement with the Petitioner that
these employees whose work is confined to the central stations are not
guards within the meaning of the Act. As for the Employer's conten-
tion that S-3's are guards because of their role as an integral part
of ADT's protective team, we find that there is nothing in the
language of Section 9(b) (3) to warrant such a finding.
SUTTER MUTUAL WATER CO. '1139
There remains for consideration the unit placement of Bornancin,
the background music supervisor, and the two porters.
Contrary to the Employer, we find Bornancin, the only individual
in the music department in Cleveland, has none of the statutory
indicia of supervisory status. As he appears to have a sufficient com-
munity of interests with the regular S-1's and S-3's, we shall include
Bornancin in the nonguard unit herein found appropriate. Finally,
we find in agreement with the parties that the porters also belong in
the unit.
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and part-time servicemen 3 and servicemen 1
employed in the Cleveland, Ohio, area, in the central stations at
14835 Emery, 812 Huron Road (the Caxton Building), and 2067 East
102 Street, the shop at 1304 Hamilton Avenue, and the affiliated guard
stations at 1304 Hamilton Avenue, 2000 West 25th Street, 3901 Ches-
ter Avenue, Harvard and Broadway, and 2300 St. Clair Avenue;
background music supervisor; and porters; excluding all service-
men 2, special servicemen 1, any other guards, confidential employees,
professional employees, foremen, relief supervisors, assistant super-
visors, supervisors at Hamilton Avenue, and any other supervisors as
defined in the Act.24
[Text of Direction of Election omitted from publication.] 25
u The exclusions not discussed above conform to the stipulation of the parties.
x An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 8 within 7 days after
the date of this Decision and Direction of Election. The Regional Director shall make the
list available to all parties to the election. No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances. Failure to comply
with this requirement shall be grounds for setting aside the election whenever proper ob-
jections are filed. Excelsior Underwear, Inc., 156 NLRB 1236.
Sutter Mutual Water Company and Local Union 1245, Interna-
tional Brotherhood of Electrical Workers , AFL-CIO, Peti-
tioner. Case 3O-RC-6976. September 14,1966
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held in the above-entitled
proceeding before Hearing Officer Shirley N. Bingham. The parties
were represented by counsel, and each was given full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
160 NLRB No. 84.