Fairchild Engine & Airplane Corp.

National Labor Relations Board - Board Decisions

May 15, 1945

61 N.L.R.B. 1187 (N.L.R.B. 1945)

In the Matter of FAIRCHILD ENGINE & AIRPLANE CORPORATION, RANGER
AIRCRAFT ENGINES DIVISION and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW-CIO
Case No. w-R-5159 .Decided May 15,1945
Messrs. lVilliam E. Speeler, James K. Lindsay , and Frank Begley,
of Farmingdale , L. I., N. Y., for the Company.
Mr. Benjamin Rubenstein , of New York City, for the Union.
Mr. Thomas A . Ricci, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Union, United Automo-
bile, Aircraft and Agricultural Implement Workers of America,
UAW-CIO, herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Fairchild Engine & Airplane Corporation, Ranger Aircraft Engines
Division, Farmingdale, Long Island, New York,, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Richard J. Hickey, Trial Exam-
iner . Said hearing was held at New York City, on January 22, 1945.
The Company and the Union appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
At the hearing, the Union moved to dismiss the petition. The Trial
Examiner referred the motion to the Board for determination. For
reasons set forth in Sections III and IV, infra, the motion is denied.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
an opportunity to file briefs with the Board.
1 Name as amended at the hearing.
61 N. L. R. B., No. 194.
1187
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Fairchild Engine & Airplane Corporation, a Maryland corporation,
is engaged in the manufacture and sale of airplane engines and air-
plane engine parts. It divides its operations into three divisions, one
of which, called the Ranger Aircraft Engines Division, operates two
principal plants, one at Jamaica and one at Farmingdale, both in Long
Island, New York, and several small facilities in the vicinity of these
two plants. This proceeding solely concerns certain employees of the
Ranger Aircraft Engines Division. During the calendar year 1944,
the Company's purchases of raw materials for use at its Jamaica and
Farmingdale plants were valued in excess of $1,000,000, of which
approximately 75 percent was received from points outside the State
of New York. During the same period, the finished products manu-
factured at those plants were valued in excess of $1,000,000, of which
approximately 90 percent was shipped to points outside that State.
We find, and the Company does not deny, that it is engaged in com-
merce within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, affiliated with the Congress of In-
dustrial Organizations, is a labor organization admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated October 25, 1944, the Union advised the Company
that it had been authorized by a majority of the guards employed
in the Company's Jamaica and Farmingdale plants to act as their col-
lective bargaining representative and requested recognition from the
Company as the sole bargaining agent of all its guards at those plants.
On November 13, 1944, the Company replied that it must deny such
request because a unit of guards is inappropriate and because of a pro-
vision in its current contract with Local 661 of the Union, covering
its production and maintenance employees, which precludes the con-
tracting union from accepting for membership certain enumerated
classes of employees, including guards.
The Company is presently operating under a collective bargaining
agreement with Local 661 of the Union, covering production and main-
tenance employees of the Ranger Aircraft Engines Division. The con-
FAIRCHILD ENGINE & AIRPLANE CORPORATION . 1189
tract was executed on September 8, 1944, and by its terms is to remain
in effect until September 8, 1945. It contains a provision stating that
". .. the Union shall not accept or maintain as members direct repre-
sentatives of management such as . . . guards . . ." and was exe-
cuted by the president of Local 661 as well as a Regional Director and
an international representative of the Union. The record indicates
that the Union has chartered an undesignated local for the guards it
now seeks to represent.
The Company argues that the Union is bound by the contract, and,
therefore, estopped from seeking to represent guards; it urges the
contract as a bar to the present proceeding. Assuming that the Union
is bound by the contract, for reasons set forth in prior decisions of the
Board 2 we find no merit in the Company's contention and are of the
opinion that the contract is not a bar to the instant proceeding.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.3
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 requests a unit of all guards and corporals working at
and out of the Company's Jamaica and Farmingdale plants, excluding
sergeants, chiefs, and all supervisory personnel. Subject to its objec-
tions, stated below, to the inclusion of guards in any bargaining unit,
the Company agrees to the composition of the unit as requested.
At each of the Company's principal plants, located at Jamaica and
Farmingdale, 24 miles apart, are stationed a group of guards under
separate ohiefs. From each plant a small number of guards is assigned
to patrol several small stations of the Company, such as garages,
hangars, and the Company's general office. None of these locations is
more than 18 miles distant from a principal plant. All the Company's
plant-protection employees, including guards, corporals, sergeants,
and chiefs, are members of the auxiliary military police, having been
sworn to the Articles of War. They are armed and uniformed and
wear distinctive shoulder insignia reading "Military Police."
2 Matter of Packard Motor Car Company , 47 N L R B 932 , and Matter of Briggs Manu-
facturing Company , 49 N L. R B 57
3 The Field Examiner reported that the Union submitted 63 application -for-membership
cards ; that 50 of said cards are dated October 1944 , 3 are dated November 1944, and 10
are undated , and that there are 100 employees in the unit hereinafter found appropriate.
In support of its motion to dismiss the petition , among other grounds, the Company con-
tends that the Union does not represent a majority of the employees in the unit sought.
We find no merit in this contention For the purpose of proceeding with a determination
of representatives , a substantial showing of representation among employees in the unit
sought is deemed sufficient
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The duties of the guards, generally, are to prevent espionage and
sabotage, protect company property against theft or damage, police
the plants and maintain order, and enforce company rules. They
check badge identifications of employees as well as visitors, examine
packages brought in or taken out of the plants, control traffic and car
parking, check the punching of time clocks, report accidents and fire
hazards, guard access to restricted areas, and report violations of com-
pany rules, such as prohibitions against smoking, fighting, failure to
use safety equipment, possession of liquor, loitering, and the conduct
of unauthorized union business by union representatives.
Corporals are not regularly assigned to patrol tours. They usually
sit at a police desk at the principal plants and make records on the
police blotter. They distribute guns and ammunition. Occasionally
they act as sergeants during the latters' absence but never have any
supervisory power and are always paid at the same rate as guards.
The guards and corporals must be alert to take immediate action to
prevent any act of sabotage or the actual commission of a theft. They
are also authorized to remove an employee bodily from the premises in
certain cases, such as intoxication, in the interests of immediate safety.
In all other respects guards and corporals have discharged their duties
when they have made written reports to their supervisors. They have
no discretion as to the type of penalty to be meted out for infraction of
rules and have no power to recommend changes in the status of other
employees.
The Company contends that the unit requested by the Union is inap-
propriate because guards are employers within the meaning of Section
2 (2) of the Act, and because the representation of militarized guards
for collective bargaining purposes contravenes public policy, especially
where the international union seeks to represent both militarized
guards and production and maintenance employees, albeit in separate
bargaining units and through separate locals.
In support of its first contention, the Company asserts that guards
are "the protective and monitorial eye of management in its dealings
with its rank and file employees," and, therefore, acting directly in
the interests of the employer, are themselves to be deemed employers
in the meaning of Section 2 (2) of the Act. The record, however,
does not bear out this assertion. Guards do not formulate or deter-
mine the Company's labor relations policy. Their functions are un-
related to the production processes and they neither assign nor direct
the work of other employees. Without any semblance of discretion
they are obligated to fulfill definite duties in accordance with specific
instructions. They are without power to hire or discharge other em-
ployees or to recommend such action. Nor is any authority vested
in them to excuse or penalize employees guilty of wrong doing. In
sum, as respects other employees, guards are merely monitors, and as
FAIRCHILD ENGINE & AIRPLANE CORPORATION 1191
respects the Company it cannot be questioned that they are its em-
ployees.4 The Company's contention that a unit of guards is inap-
propriate 'is obviously untenable, insofar as it is predicated upon the
unfounded premise that these employees are identified with manage-
ment.5
The Company's second contention is, in essence, that the union
membership of its guards would necessarily conflict with their loyalty
to the Company and to the public, and hence preclude conscientious
performance of their particular duties. For the reasons stated in
many similar cases we do not agree that such incompatibility between
union membership and faithful performance of duty exists, or that
the apprehension thereof warrants denial of the opportunity to bar-
gain collectively under the protection of the Act.,, Moreover, in this
case, as in all similar cases, the unit sought 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 occupations, 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. We
also note that the War Department has recognized that our practice
of placing such employees in segregated units serves to obviate possible
conflicts of interest.'
We are persuaded 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 welfare.
That steady and unimpeded flow of commerce which the Act is de-
signed to maintain by the encouragement of the orderly procedures
of collective bargaining is doubly essential in time of war. It is iri
keeping with the policies of the Act and it is in the public interest to
4 In its brief , the Company states : "This Company does not contend that its guards are
not employees in the broad sense of that term as meaning anybody from its top executive
officer ondown the line who is on its pay roll "
5 Matter of Bethlehem Steel Company, 61 N L. R. B. 892.
6 Matter of Chrysler Corporation, 44 N. L R. B. 881 ; Matter of Dravo Corporation, 52
N L. R B 322.
1 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 prohibiting 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 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.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foster and protect collective bargaining by guards, thereby promoting
a practice necessary to the amicable settlement of labor disputes and
eliminating obstacles to commerce.
We find that all guards and corporals working in an out of the
Company's plants located at Jamaica and Farmingdale, Long Island,
New York, excluding chiefs, sergeants," and all 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 Board depart from its usual practice
concerning eligibility and set November 1, 1944, the date of filing of
the petition herein, as the voting eligibility date, because a number
of guards were discharged during the month of November 1944, and
because the Company's business is in an uncertain state with respect
to possible increases or decreases of personnel. The Company opposes
this request, stating that the discharged guards were permanently
separated from the Company and hence are ineligible to participate
in an election among the Company's employees.
The only evidence in the record relative to the November 1944 dis-
charges is the uncontradicted testimony of the Company's security,
director, that the discharges were made upon the recommendation of
the Army Air Forces and the general de-emphasis program of the
Army, that the discharges were permanent, that should the Company
obtain additional business it would not require additions to its guard
force, and that it anticipated a further slight decrease among its plant-
protection employees in the near future. Under these circumstances,
we find that there is no valid reason to depart from our usual practice
with respect to the voting eligibility date.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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 Relations Act,
3 Excluded also are two relief sergeants who have the same duties as regular sergeants,
and, like them , have power effectively to recommend changes in the status of other
employees.
9 Matter of Bethlehem-Fairfield Shipyard, Inc , 61 N. L R B 901 , and Matter of Inter.
national Harvester Company, Milwaukee Works, 61 N. L . R B 912.
FAIRCHILD ENGINE & AIRPLANE CORPORATION 1193
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 Fairchild Engine
& Airplane Corporation, Ranger Aircraft Engines Division, Farming-
dale, Long Island, New York, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days
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 dur-
ing said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding 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
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, UAW-CIO, for the purposes of col-
lective bargaining.
MR. GERARD D. REILLY, dissenting :
For reasons which I expressed in my dissenting opinions in Matter
of Packard Motor Car Company, 47 N. L. R. B. 932, and Matter of
Federal 1lJotor Truck Company, 54 N. L. R. B. 984, I feel constrained
to disagree with the holding in the instant proceeding.