International Harvester Co.

National Labor Relations Board - Board Decisions

May 4, 1945

61 N.L.R.B. 912 (N.L.R.B. 1945)

In the Matter Of INTERNATIONAL HARVESTER COMPANY, MILWAUKEE
WORKS and FEDERAL LABOR UNION No. 22631, A. F. OF L.
Case No. 13-R4710.-Decided May 4, 1945
Messrs. Robert Dickman and Walter L. Hallam, of Chicago, Ill., for
the Company.
Messrs. Davis Beznor and John E. Cudahy, of Milwaukee, Wis., for
the A. F. L.
Miss Ruth E. Bliefield, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Federal Labor Union' No. 22631,
A. F. of L., herein called the A. F. L., alleging that a question affecting
commerce had arisen concerning the representation of employees of
International Harvester Company, Milwaukee Works, Milwaukee,
Wisconsin, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Leon A. Rosell, Trial Examiner. Said hearing was held at Milwau-
kee, Wisconsin, on January 11, 1945. The Company and the A. F. L.
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Company moved to
dismiss the petition on the ground that the unit petitioned for is not
appropriate within the meaning of the Act. For the reasons herein-
after discussed, this 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 opportunity to file briefs with
the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
International Harvester Company, a New Jersey corporation with
its main offices in Chicago, Illinois, maintains plants in the States of
61 N. L. R. B., No. 151.
912
INTERNATIONAL HARVESTER COMPANY 913
Illinois, Wisconsin, Indiana, Ohio, New York, Tennessee, and Cali-
fornia. The Milwaukee Works, located at Milwaukee, Wisconsin, is
the only plant involved in this proceeding. At its Milwaukee Works,
the Company manufactures Diesel engines, tractors, and war mate-
riel. During 1944 the Company purchased for the Milwaukee Works
raw materials amounting to over $1,000,000, over 50 percent of which
was shipped to it from points outside the State of Wisconsin. During
the same period the sales at the Milwaukee Works amounted to over
$2,000,000, over 50 percent of which was shipped to points outside the
State of Wisconsin.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act, and we so find.
II. THE ORGANIZATION INVOLVED
Federal Labor Union No. 22631, affiliated with the American Fed-
eration of Labor, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In October 1944 the A. F. L. requested recognition as the bargaining
representative of the Company's plant-protection employees. The
Company replied that it could not recognize the A. F. L. as the exclu-
sive bargaining representative of these employees, and shortly there-
after the A. F. L. filed the petition herein.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the A. F. L. represents a substantial number of
employees in the unit hereinafter found appropriate?
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 A. F. L. contends for a unit of employees in the plant-protection
department 2 of the Milwaukee plant, except for supervisory employees
with authority to hire, promote, discharge, discipline, or effectively
The Field Examiner reported that the A . F. L. submitted 47 application for membership
cards, all of which bore the names of persons listed on the Company ' s pay roll , which con-
tained the names of 53 employees in the appropriate unit ; and that the cards ' were dated
August 1944.
2 The petition as originaly filed requested a unit of all "fire and watch department em-
ployees " The parties stipulated at the hearing that the fire and watch department is now
known as the plant-protection department.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend such action.3 The Company contends that such a unit is
not appropriate within the meaning of the Act and moves to dismiss
the petition.
The Company has 57 employees in the plant-protection department
at its Milwaukee Works. These employees are uniformed,4 milita-
rized, and have been deputized by the Police Department of the city
of Milwaukee. Those classified as guards, gatemen, and patrolmen
bear arms. The parties agreed to the exclusion of the chief of the
plant-protection department, the assistant chiefs, and 4 lieutenants,
who are supervisory employees. The remainder of the employees in
the unit are classified as patrolmen, gate guards, and fire inspectors.
All are sometimes collectively referred to herein as guards.
The guards perform the usual duties incident to their position, they
carry out and enforce safety rules and regulations, and are responsible
for the prevention of sabotage and the enforcement of law and order
on the Company's premises. In connection therewith, the guards are
obligated to report any infractions by employees of rules relating to
gambling, fighting, intoxication, smoking, unsafe practices,5 violation
of fire rules, and damage to company property. Where the infraction
of a company rule is not considered serious, a guard reports the em-
ployee involved directly to the latter's foreman who takes the necessary,
steps to correct the situation. Where, however, an employee violates
a rule that is considered more serious, the guard makes a written report
on an established report form 6 to the supervisors of the plant-protec-
tion department, and the matter is thereafter investigated and disposed
of by the plant supervisors. The guards have no authority and are
not expected to recommend discharge or discipline of any employee for
violation of the Company's rules or other observed misdemeanors.
They merely report the incident. The guards carry keys to certain
restricted areas on the Company's premises and are charged with the
duty of guarding these premises closely. However, many of these
areas are parts of the plant where certain designated production em-
ployees are engaged in production operations. If an employee is sus-
pected of criminal conduct, such as theft of company property, guards
may be instructed to keep the suspect under surveillance. A guard
is sometimes notified in advance when the Company is going to dis-
3 The A F L . was certified on July 18 , 1941 , as the bargaining representative of all
production and maintenance employees at the Milwaukee Works Matter of International
Harvester Company ( Milwaukee Works ), 33 N. L. R B 546 . Fire and watch employees,
except production and maintenance employees who act as voluntary firemen , were excluded
from the unit See Matter of International Harvester Company ( Milwaukee Works),
32 N L R B 16
d That is, they wear uniform caps and belts
5 A number of production and maintenance employees are designated as deputy safety
inspectors and volunteer firemen They , too, presumably , have a duty to report hazardous
conditions
6 This form contains printed questions covering inspection of buildings , fire equipment,
and the like . Theie is a space for "remarks."
INTERNATIONAL HARVESTER COMPANY 915
charge an employee and he then escorts the employee to the Company's
gates. The Company also would notify its guards in advance, accord-
ing to the testimony of its witness at the hearing, if it believed that
there might be labor trouble among the production and maintenance
employees, and would instruct the guards to protect certain areas in
the plant if any disturbance should materialize. The guards check
fire apparatus, check the identification of all persons entering the plant,
including visitors, and generally patrol the premises, punching clocks
on their rounds.
All the employees in the plant-protection department have taken
an oath of allegiance to the United States, prescribed by military
authorities, and have signed an agreement running to the United
States, in which they undertake to discharge faithfully their duties as
civilian auxiliaries to the military police in the protection of war
material, war premises, and war utilities, and to obey the orders of the
Commander in Chief and his officers in connection therewith. In this
same agreement, a guard acknowledges that the Articles of War have
been read and explained to him and that he is subject to military laws
during the period of his employment.' The guards have received
training under the supervision of an Army officer and they have been
instructed via Guard Order No. 1, prescribed in War Department Cir-
cular No. 15,8 that they are under the command of a commissioned
Army officer. This Order recites, inter alia, "Although in command at
all times, this officer has not superseded the civilian guard officers, and
normally will exercise direct control only in matters relating to mili-
tary instruction and duties as Auxiliary Military Police." 9 The mili-
tarized plant-protection employees at this plant are under the juris-
diction of the Army's Sixth Service Command, having headquarters in
Chicago. Together with the plant-protection forces in all the Com-
pany's plants in the United States and Canada, they are under the
jurisdiction of a company official known as the supervisor of plant pro-
7 War Department Circular No 15 , entitled "Auxiliary "Military Police ," which contains
the basic instructions issued by the Army Service Forces, covering the organization, train-
ing, and command of plant guard forces, provides that only certain Articles of War need
be read and explained to militarized plant guards inasmuch as other Articles are deemed
inapplicable to auxiliary military police Guards are subject to court -martial for certain
offenses. The aforesaid War Department Circular No 15 , however , provides, inter alia,
that it is "inadvisable to order a court-martial for offenses committed while off duty and not
within the plant premises , unless the offense is directly connected with the individual's
duties as a member of the Auxiliary Military Police" ; and that no court-martial proceeding
of any nature , involving a member of the Auxiliary Military Police, shall be commenced
without the prior approval of the War Department.
8 See footnote 7, supra
6 War Department Circular No . 15 further provides , in part, "The plant management
continues to be charged with the training of its guard forces in their ordinary protective
duties . the Auxiliary Military Police will be trained by or under the direction of the
plant guard officer in military subjects to the extent he deems necessary The use of ex-
perienced personnel from within the guard force for the purpose of conducting such train-
ing will be encouraged by the plant guard officer The time to be devoted to such train-
ing will be determined by the plant guard officer It will not exceed one hour per week
of its equivalent , except with the approval of the plant management."
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tection. This official, William R. Rowley, receives, from time to time,
instructions and directions from the Sixth Service Command, per-
taining to the functioning of the guard forces under his supervision.
Rowley testified at the hearing that the power to discipline and dis-
charge employees in the plant-protection department at the Milwau-
kee plant is vested in the chief of guards, whose action is subject to re-
view by the plant superintendent.", He also testified that the guards
are subject to the dual control and direction of the military authorities
and the Company. It is clear from this uncontradicted testimony, as
well as from the provisions of the sundry Army instructions and orders
which were introduced into evidence, that, despite the Army's para-
mount authority over the guards in the military sphere, the Company
exercises day to day control over their tenure of employment, their
working conditions, and their duties 11
The Company contends that the proposed bargaining unit is inap-
propriate because (1) its plant-protection employees are militarized;
(2) they are engaged in a confidential capacity; and (3) they are
charged with wartime responsibilities to the public which are incom-
patible with their personal interests, particularly as union members,
and more specially as members of the same union which represents the
production and maintenance employees at the Milwaukee plant. Elab-
orating on the last point, the Company adverts to its policy, assertedly
adopted in order to promote the efficiency of the guards, of discourag-
ing personal friendships between guards and production and main-
tenance employees. It argues that this policy is in conflict with
certain sections of the A. F. L. constitution, which provides, among
other things, that an object of the union shall be the culitvation of
friendship and fellowship among its members, and that newly elected
members shall subscribe to an oath of allegiance to the organization
As to the Company's first argument, in consideration of the entire
record, the particular facts set forth above respecting the function and
status of the guards and the complete text of the afore-mentioned War
10 War Department Circular No. 15 provides :
Employer-employee Relationship
1 Basically the militarization of plant guard forces does not change the existing
systems of hiring, compensation , and dismissal ; all remain primarily a matter between
the guards and the plant managements. Guards in the employ of a private employer
may, as heretofore , be dismissed by that employer , and those who are Civil Service em-
ployees in the employ of the war Department may be dismissed by the local command-
ing officer in accordance with Civil Service regulations . In neither case is a court-
martial necessary.
2. A member of the Auxiliary Military Police may not be employed or dismissed
and may not resign if the plant guard officer or other responsible Arniy representative
believes that the efficiency of the plant guard force would be impaired and declines to
give his approval thereto.
Although the record contains no testimony on this point, it is evident from the pro-
visions of war Department Circular No 15 that the Company, not the war Department,
recruits the guards , pays their wages, pays Social Security taxes on their behalf, and fur-
nishes their arms and equipment.
INTERNATIONAL HARVESTER COMPANY 917
Department Circular No. 15, together with an interpretive memoran-
dum pertaining thereto, dated July 10, 1943, and addressed by the
Adjutant General to the Commanding Generals All Service Com-
mands,12 we find that the militarization of the guards here in question
has not materially affected their status as employees under the Act, or
their right as such to collective bargaining. There is nothing in the
record to differentiate this case from numerous others involving mili-
tarized plant guards, in which we have taken the same position, with
the concurrence of the military authorities 13 Likewise, referring to
the Company's argument that its guards are "confidential" employees,
we find here, as in many similar cases, that the employees under con-
sideration are in no sense supervisors, nor do they serve in a confi-
dential capacity with respect to labor relations.14 They are simply
monitors, policemen, bound to prevent disorder, sabotage, or damage,
and to report facts pertaining thereto.
The Company's third argument is, in essence, that the union mem-
bership of its guards would necessarily conflict with their loyalty to
the Company and the public, and hence preclude conscientious per-
formance 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 mere
apprehension thereof warrants denial of the opportunity to bargain
collectively under the protection of the Act.16 Moreover, in this case
as in all similar cases, we are placing the militarized guards in a sep-
arate unit.", We are of the opinion that the segregation thereby ef-
fected between guards and other employees in their collective bargain-
ing activities serves in large part to obviate such objections as the
Company here advances: 7
We have elsewhere considered the argument, which is implicit in
the Company's contention, that the bargaining rights of guards in a
war plant should be denied in the public interest. We think pre-
cisely the opposite is true .118
12 This memorandum contains a statement of applicable War Department policy on plant
guard union representation , as follows : "In the event that plant guards enrolled as Aux-
iliary Military Police desire to be represented in collective bargaining with the manage-
ment, 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 union local , provided they are , in fact, separate bargaining
units."
'3 Matter of Chrysler Corporation, 44 N. L. R. B. 881 ; Matter of Dravo Corporation, 52
N. L. R. B . 322; Matter of Budd Wheel Company, 52 N. L. R. B 666; Matter of Rohm and
Haag, 60 N. L It. B. 554. The Board does not concur in the decision of the Circuit
Court of Appeals for the Seventh Circuit in N. L. R. B. v. E. C. Atkins, decided February
27, 1945.
39 See cases cited in footnote 13, supra.
"Matter of Chrysler Corporation, 44 N. L . It. B. 881; Matter of Dravo Corporation,
52 N. L. It. B. 322.
ie Matter of Dravo Corporation, 52 N. L. It. B. 322.
"Matter of Bethlehem Steel Co , 61 N. L. It. B. 892.
Is Matter of Rohm and Haas, supra , see Matter of Bethlehem Steel Co., 61 N. L. It. B.
892.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all plant-protection employees of the Company at its
Milwaukee Works, including patrolmen, guards, gate guards, and
fire inspectors, but excluding the chief of the plant-protection depart-
ment, the assistant chiefs, the lieutenants, and any other supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
commend such action, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
V. IRE DETERMINATION OF REPRESENTATIVES
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,
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 International Har-
vester Company, Milwaukee Works, Milwaukee, Wisconsin, an elec-
tion 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 direc-
tion and supervision of the Regional Director for the Thirteenth Re-'
gion, 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 im-
mediately 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 Federal Labor Union No. 22631, A. F. of L., for the
purposes of collective bargaining.