Kolcast Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1955

114 N.L.R.B. 1311 (N.L.R.B. 1955)

KOLCAST INDUSTRIES, INC. 1311
Kolcast Industries, Inc. and United Steelworkers of America,
AFL-CIO,' Petitioner. Case No. 8-RC-05920. December 8, 1955
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election
an election by secret ballot was conducted on September 2, 1955, under
the direction and supervision of the Regional Director for the Eighth
Region, among the employees in the stipulated unit. Upon conclu-
sion of the balloting, the parties were furnished with a tally of ballots
which showed that of approximately 148 eligible voters, 70 cast ballots
for the Petitioner, 67 voted against the Petitioner, and 5 were chal-
lenged. The challenged ballots were sufficient to affect the results of
the election.
The Petitioner challenged 5 ballots cast in the election on the ground
that 4 of them were cast by supervisors and 1 was cast by a guard.
In accordance with the Rules and Regulations of the Board, the Re-
gional Director conducted an investigation and on October 14, 1955,
issued and duly served upon the parties his report on challenged
ballots in which he recommended that the challenges to four ballots
be overruled and these ballots be opened and counted, and that the
challenge to the remaining ballot be sustained. The Employer and
Petitioner filed timely exceptions to the Regional Director's report.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. In agreement with the parties, the following employees of the
Employer constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act:
All production and maintenance employees employed at the Em-
ployer's Cleveland, Ohio, plant, excluding office and office clerical
employees, professional employees, guards, and supervisors as defined
in the Act.
5. The Petitioner excepts to the Regional Director's finding that
contrary to its contention Charles Kett, Jerry Kokish, Thomas Spauld-
ing, and Vladimir Saskijedic are not supervisors within the meaning
of the Act. The Petitioner in its exceptions does not advert to any
specific substantial evidence which controverts the factual findings of
1 The AFL and CIO having merged, we are amending the identification of the Petitioner's-
affiliation.
114 NLRB No. 203.
1312 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
the Regional Director , but it seeks a hearing for the purpose of de-
veloping such evidence . As we believe that the evidence adduced by
the Regional Director 's investigation and set forth in his report clearly
shows that none of the four employees involved has authority respon-
sibly to direct other employees , or to make effective recommendations
concerning their status , or possesses any of the other indicia of the
statutory criteria for supervisors , we find that Kett, Kokish, Spauld-
ing, and Saskijedic are not supervisors within the meaning of the Act.
Accordingly, we deny the Petitioner 's request for a hearing, and, for
the reasons stated in the Regional Director 's report , overrule the chal-
lenges to the four ballots in question . We shall direct that these
ballots be counted.
The Employer excepts to the Regional Director 's recommendation
sustaining the Petitioner 's challenge to the ballot of John Wolf which
was based on the ground that Wolf is a guard. The Employer con-
tends that Wolf is not a guard within the meaning of the Act as he
is employed primarily as a furnace tender and performs "guard
duties" only on holidays and weekends , when , as a consequence, he
would not be called upon to enforce company rules against other
employees in the stipulated unit. The Employer asserts in support
of its contention that the legislative history of Section 9 (b) (3) shows
that the determinative test in these circumstances is whether the duties
of the employee while acting as a guard are such as to place him in a
position where his loyalty to other union members would conflict with
his duty to his employer . In similar factual situations , the Board,
cognizant of the congressional intent in enacting the pertinent portion
of Section 9 (b) (3) has held that production and maintenance em-
ployees employed as part -time watchmen only during hours when the
plant is not in operation , and with authority to exclude unauthorized
persons from the premises, are guards within the meaning of the Act.'
Further, the Board has held that employees who spend less than a
major portion of their time as watchmen are nevertheless guards.'
Accordingly, as we find no persuasive reason for departing from this
well-established precedent , we overrule the Employer 's exceptions,
and sustain the challenge to the ballot of Wolf .4
2 Walterboro Manufacturing Corporation, 106 NLRB 1383, 1384-85; Textron, Incorpo-
rated, 107 NLRB 355, 358; Tennessee Knitting Mills, Inc., 109 NLRB 628.
s Walterboro Manufacturing Corporation , supra.
• The Employer further contends that as Wolf is primarily a production employee, his
exclusion from the unit as a guard has the effect of denying him the rights guaranteed
under Section 7 of the Act. We do not agree. Congress has, by specific legislative direc-
tion , prohibited the Board from including with other employees any individual employed
as a guard . As stated above, the Board has held that employees who spend less than a
major portion of their time as watchmen are nevertheless guards, interpreting con-
gressional intent as supporting a conclusion that "it is the nature of the duties of guards
and not the percentage of time which they spend in such duties which is and should be
,controlling" in determining whether an employee is a guard. Walterboro Manufacturing
FOX MANUFACTURING COMPANY 1313
[The Board directed that the Regional Director for the Eighth
Region shall, pursuant to the Rules and Regulations of the Board,
within ten (10) days from the date of this Direction, open and count
the ballots of Charles P. Kett, Jerry Kokish, Thomas Spaulding, and
Vladimir Saskijedic, and serve upon the parties a supplemental tally
of ballots, including therein the count of these ballots.]
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Direction.
Corporation , supra. Accordingly , in these circumstances we find no merit in the Peti-
tioner's contention.
Likewise , we do not agree with the Employer that the Petitioner will circumvent the
Board policy of refusing to include in a unit only part of a group of employees whose
duties and interests are the same , by excluding Wolf from the unit by challenge, while
refraining from challenging another employee performing the same guard duties. Sus-
taining the Petitioner's challenge to Wolf is predicated solely on his duties as a guard.
Accordingly, we believe that it is immaterial to the determination of this exception that
another employee performing the same duties was permitted to vote free of challenge.
Fox Manufacturing Company and United Furniture Workers of
America, AFL-C10.1 Case No. 10-CA-213. December 9, 1955
1 (1111
DECISION AND ORDER
On July 12,1955, Trial Examiner Thomas S. Wilson issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent's request for oral argument is denied, as the record, includ-
ing exceptions and brief, adequately presents the issues and the posi-
tions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate, Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions.
1. We agree with the Trial Examiner that the Respondent dis-
charged White on December 16,1954, because of his union membership
and activities and in order to discourage membership in the Union, in
violation of Section 8 (a) (3) and (1) of the Act. The Respondent
2 The AFL . and CIO having merged , we are showing the affiliation of the Union
accordingly.
114 NLRB No. 206.