Potter Electric Signal Co.

National Labor Relations Board - Board Decisions

Oct 30, 1964

149 N.L.R.B. 373 (N.L.R.B. 1964)

POTTER ELECTRIC SIGNAL COMPANY 373
Employees may communicate directly with the Board' s Regional Office, Sixth
Floor, 707 N. Calvert Street, Baltimore , Maryland, Telephone No. 752-8460, Ext.
2100, if they have any question concerning this notice or compliance with its
provisions.
Potter Electric Signal * Company and International Guards Union
of America . Case No. 9-CA-3044. October 30, 1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner James F. Foley issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the -National Labor Relations Act, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman McCulloch and Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner .2
i The Trial Examiner refused to allow the Respondent to continue cross-examining
Heheman, an official of the Charging Union, in its effort to develop that the Charging
Union was somehow affiliated with a Local of the Teamsters Union. It is clear from the
record that Respondent ' s only ground for doubting Heheman's testimony that no affiliation
between the two unions existed is the fact that the Charging Union filed its petition for
a guard unit the day after the Teamsters Local withdrew its petition for a unit of non-
guard employees . This would be insufficient to establish an affiliation between the two
unions even if the petition for a guard unit had been filed as a direct result of the with-
drawal of the earlier petition. We affirm the Trial Examiner 's ruling shutting off further
cross-examination of Heheman on this point after it became apparent that Respondent had
no other grounds for controverting Heheman's testimony as to the absence of affiliation
between the two unions. The lack of any factual allegations in its offer of proof that, if
permitted to continue questioning Heheman it could obtain an admission from him as to
affiliation , substantiates our conclusion that further examination would only have been
repetitious.
2 We agree with the Trial Examiner that cases such as Berea Publi8hsng Company, 140
NLRB 516, and Carle8le & Jacqueline, 55 NLRB 678 , are not applicable to dual-function
guards or guard unions . The latter case, in effect , holds that because a dual-function em-
ployee may be included in more than one unit , his representative in one unit may not
bargain with respect to functions which have been excluded from that unit. But since
employees who regularly perform both guard and nonguard work may not be represented
by a nonguard union for any purpose , St. Regis Paper Company , 128 NLRB 550, their
only opportunity for full representation must come from a guard union The legislative
history to Section 9 ( b)(3), cited by Respondent , does not convince us that Congress in-
tended otherwise Congress was concerned with the possibility of a conflict of interest if
a union represented both guards and other employees . No such conflict arises when a guard
union is permitted to represent employees who in their own person combine guard and
nonguard duties.
149 NLRB No. 38.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Potter
Electric Signal Company, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order.3
3 The Appendix to the Trial Examiner's Decision Is hereby amended to show the current
telephone number of Region 9 as 381-2200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, Case No. 9-CA-3044, was brought under Section 10(b) of the
National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein
called the Act, on a charge filed December 6, 1963, by International Guards
Union of America, herein called the Union, against Respondent Potter Electric
Signal Company, herein called Respondent. On January 30, 1964, General
Counsel issued a complaint against Respondent alleging that it has violated
Section 8(a)(1) and (5) of the Act by refusing to bargain collectively in good
faith since November 13, , 1963, with the Union with respect to the nonguard
duties of employees in an appropriate unit of guards for which the Union was
certified by the Board on or about June 28, 1963, as collective-bargaining repre-
sentative. Respondent denied by answer on February 10, 1964, that it has violat-
ed the Act by refusing to bargain in connection with nonguard duties of
guards. As an affirmative defense, it contends that there is -a fatal variance
between the complaint and the unfair labor practice charge.
A hearing on complaint and answer was held before Trial Examiner James F.
Foley on March 17 and 18, 1964, in Cincinnati, Ohio. General Counsel, Respond-
ent and Charging Party were represented, and were afforded an opportunity to
present evidence, make oral argument, and file briefs. The parties, by counsel,
waived oral argument, and General Counsel and Respondents filed briefs after
the close of the hearing. -
FINDINGS AND CONCLUSIONS 1
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, with its principal place of business in Cincin-
nati, Ohio, is engaged in the business of installing, servicing, and operating
plant fire and burglar alarm systems, and providing outside watchmen to protect
plants against prowlers and fires. During the calendar year 1963, Respondent
received gross revenue in excess of $50,000 for these services from companies
within the State of Ohio which during the same period shipped directly to points
outside the State of Ohio goods valued in excess of $50,000. Respondent is
engaged in commerce within the meaning of the Act, and the assumption of
jurisdiction will effectuate the purposes of the Act.
U. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
As previously found Respondent is engaged in the installation, servicing, and
operating of fire and burglar alarm systems and the furnishing of watchmen. It
employs approximately 24 persons in addition to officers, supervisors, salesmen, and
office help. During the latter half of 1963, three employees were full-time 'dis-
patchers; nine were outside watchmen at customers' premises and occasionally did
1 The official transcript of the hearing is corrected In the manner set forth in Appendix B
pursuant to stipulation of counsel for General Counsel and Respondent.
POTTER ELECTRIC SIGNAL COMPANY 375
dispatching; seven were troubleshooters whose principal duties consisted of re-
sponding to alarm signals from customers' plants, making temporary or perma-
nent repairs to restore the electrical burglar or fire protection system, cooperating
with municipal police or firemen in the search for prowlers and ascertainment of
the cause for the alarm, and occasionally doing installation and dispatching work;
three installed fire and burglar alarm systems in new customers' premises or made
changes, renovations, or reinstallations at existing customers' premises (installation
work), and also acted in the capacity of troubleshooters; and two tested various fire
alarm systems
On May 16, 1963, the Union filed with the Regional Director a petition
(9-RC-5420) for certification of a unit of Respondent's employees at its Cincin-
nati, Ohio, operation, consisting of all guards, and excluding all other employees
including supervisors as defined in the Act.
On June 7, 1963, Respondent and Union consented to a Board-conducted election
on June 20, 1963, in an appropriate unit of Respondent's employees. The appro-
priate unit identified in the agreement was, "All guards employed by the Employer
at its Cincinnati, Ohio, operation, excluding all other employees, and professional
employees and supervisors as defined in the Act." The election was held on June 20,
and on June 28, 1963, the Board, by its Regional Director, John C. Getreu,
issued a Certification of Representative, wherein it certified that the majority of the
employees in the appropriate unit of "All guards employed by the Employer at its
Cincinnati, Ohio, operation, excluding all other employees, and professional em-
ployees and supervisors as defined in the Act," had designated and selected the
Union as collective-bargaining representative, and that the Union was the exclusive
representative of all the employees in the appropriate unit for purposes of collective
bargaining.2
Pursuant to the consent agreement , 19 employees voted in the election. These
were nine outside plant guards furnished to customers , seven troubleshooters, and
three installers . Three rank-and-file employees who did only dispatching work, a
supervisor who at times did rank-and-file troubleshooting and installation work, and
two employees who did only the work of testing various fire alarm systems did not
vote. They were not considered to be in the appropriate unit of guards.
B. The unfair labor practice
On July 23, 1963, the Union, by letter,' transmitted to the Respondent a propo-
sal for a collective-bargaining agreement. This proposal, among other things,
provided wage rate proposals for installers identified as construction employees,
troubleshooters, and watchmen. The Union and Respondent negotiated on this
proposal at meetings on August 1, 6, and 12. At a meeting on August 27,
Respondent submitted its first counterproposal . Meetings were held on September
12, 24, and 25, and October 1, 1963, dealing largely with the Respondent's coun-
terproposal. On October 21, Respondent, by letter, sent a second counterproposal
to the Union. Respondent's proposal, like the first one, applied to installers as
'On or about March 5, 1963, Ice, Storage, Scrap Material and Grain Warehousemen,
Local Union No 105, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, filed a petition with the Board in Case No. 9-RC-5326 for certifi-
cation as representative of all of Respondent's employees at its Cincinnati place of busi-
ness excluding office clerical employees, professional employees and supervisors as defined
in the Act Following a hearing, the Regional Director on April 17, 1963, issued his Deci-
sion and Direction of Election He found that the appropriate unit consisted of "All em-
ployees including regular part-time employees employed by the Employer in its Cincinnati,
Ohio, operations, but excluding all office clerical employees, and all guards, professional
employees and supervisors as defined in the Act." He included three dispatchers and two
testers of sprinkler systems for fire control. He excluded troubleshooters, and installers.
They were excluded because troubleshooting is guard's work, and installers doing trouble-
shooting part time are guards because of their part-time troubleshooting See A D.T.
Company, 112 NLRB 80, and American District Telegraph Company, 128 NLRB 345.
Neither the troubleshooters,' nor the installers because of their part-time troubleshooting,
could be included in a unit with other 'employees because of Section 9(b) (3) of the Act.
Walterboro Manufacturing Corporation, 106 NLRB 1383. Apparently, Respondent's em-
ployees who were assigned to customers to work as plant guards were not considered.
They are guards, and were precluded from the unit by. Section 9(b) (3). Armored Motor
Service Company, Inc., 106 NLRB 1139, and N L.R.B. v. American District Telegraph Co.
of Pa, 205 F. 2d 86 (CA. 3). No election was held in this unit as the Regional Director
on'May 15, 1963, issued an Order permitting the withdrawal of the petition with prejudice.
The Union filed its petition for certification on May 16, 1963.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well as troubleshooters and watchmen, although Respondent grouped installers
and troubleshooters in one group identified as "Repair, Maintenance and Service
(Guards)." Bargaining sessions on the second counterproposal were held on
October 30, and November 6 and 13, 1963.
At the conclusion of the November 13 session, the Union and Respondent were
far apart on many of the collective-bargaining matters. Harold Freeman, a
negotiator for Respondent, as well' as one of its attorneys, announced at the end
of the November 13 session that Respondent would no longer bargain with
respect to installation work, as such bargaining had been permissive or volun-
tary, and not mandatory. His announcement also included the position that there-
after Respondent's counterproposals would not apply to installation work or
other nonguard duties, with the reservation that Respondent would welcome the
opportunity to seek an agreement relating to nonguard duties performed by
guards by voluntary bargaining. Freeman testified at the hearing that Respond-
ent took this position on November 13 and thereafter in an effort to reduce the
area of dispute. The Union contended at the November 13 meeting that installa-
tion work was guard's work and wages, hours, and other terms and conditions
relating to this work were mandatory issues of bargaining. One of its negotia-
tors suggested that the parties go to the Board for clarification of the unit. Re-
spondent's negotiator, Freeman, replied that Respondent had no objection to the
Union seeking the clarification. He did not feel that Respondent needed a clarifi-
cation. The Union then announced it was taking the dispute to the Federal
Mediation and Conciliation Service. This it did, and Respondent and the Union
met with the Mediation Service on November 26, December 5, 14, and 20. The
November 26 and December 20 meetings were joint sessions as was part of the
December 5 meeting. At the December 14 session, the Mediation Service arbi-
trator met with the Union and the Respondent separately.3
The Federal Mediation and Conciliation Service attempted to bring the Union
and Respondent together on basic economic issues such as length of contract,
wage increases, hospitalization, union security, and other basic bargainable mat-
ters regardless of their relationship to the guard duties or nonguard duties of the
watchmen, troubleshooters, and installers in the appropriate unit . It is clear from
the evidence that agreement was not reached on most of the many unresolved
issues. It is also clear that Respondent's proposals and counterproposals during
these four meetings did not apply to installers when doing installation work, or
to troubleshooters when doing installation or dispatching work, or to watchmen
when doing dispatching work. Respondent would not recognize the Union as
the collective-bargaining representative of installers when not doing trouble-
shooting, troubleshooters when doing installation work, or watchmen when do-
ing dispatching work or installation work.
At the December 20 meeting, the Union proposed a 1-year contract and a
5-cent an hour wage increase for all of the work done by installers, troubleshoot-
ers, and watchmen. The Respondent proposed a 3- or 4-year contract applicable
to troubleshooting and watchmen work only, with a 4-cent increase each year for
troubleshooting work only. With the stand by Respondent that it would bargain
only for troubleshooting and watchmen work, the parties ceased bargain-
ing. No further bargaining has been attempted.
The unfair labor practice charge filed with the Board on December 6, 1963,
alleges that Respondent refused to bargain in good faith by refusing to recog-
nize the Union as the representative of employees who do part- time guard
work. The General Counsel's complaint against Respondent alleges Respondent
has refused to bargain in good faith by refusing to bargain with the Union for
rates of pay, hours of employment, and other terms and conditions of employment
of employees in the unit while performing nonguard duties.
C. Analysis and concluding findings
There are two issues before me for resolution. One is the question whether
there is a fatal variance between the allegation of a violation in the complaint
and the unfair labor practice charge. The other is whether Respondent is re-
quired by Section 8(a)(5) of the Act to bargain with the Union regarding
wages, hours, and other terms and conditions of employment relating to the
nonguard duties of employees employed part time as guards. Are these bar-
gainable matters issues of mandatory bargaining or merely voluntary bargaining?
O The Union called a strike on December 13, which it terminated on or about Decem-'
ber 24, 1963.
POTTER ELECTRIC SIGNAL COMPANY 377
The unfair labor practice charge filed by the Union alleges that Respondent
refuses to recognize the Union as the representative of employees who do part-
time guard work. The complaint alleges that Respondent refuses to bargain
with respect to nonguard duties of employees included in an appropriate unit of
guards. As a preliminary matter at the hearing , I denied Respondent 's motion
to dismiss because of a fatal variance . I permitted Respondent to renew this
defense upon the receipt of the evidence in the case . Upon consideration of the
evidence of record as well as the argument of counsel in support of and in
opposition to the prelimination motion, I find no reason to change my original
ruling. While an unfair labor practice charge initiates the investigation of the
case,4 it is the complaint that sets out the violation with which the Respondent is
charged 5 The evidence discloses that the Respondent has been fully aware at all
times that the issue in controversy between it and the Union is its refusal to
bargain for nonguard duties of part-time guards. This is so notwithstanding
that the language used by the Union in the unfair labor practice charge when
considered literally and in isolation , does aver that Respondent refuses to bargain
with respect to all duties of part-time guards. In the circumstances of this case,
I find no fatal variance between the complaint and the unfair labor practice
charge.6
The 'second issue must be resolved pursuant to the requirements of Section
9(b)(3) of the Act, and the meaning to be given to it in the light of its
legislative history. The applicable part of Section 9(b) is as follows:
The Board shall decide in each case whether, in order to assure to em-
ployees the fullest freedom in exercising the rights guaranteed by this Act,
the unit appropriate for the purposes of, collective bargaining shall be the
employer unit , craft unit , plant unit , or subdivision thereof: Provided, That
the Board shall not . . . ( 3) decide that any unit is appropriate for such
purposes if it includes , together with other employees , -any individual em-
ployed 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 ; but no labor organization shall be certified as the repre-
sentative of employees in a bargaining unit of guards if such organization
admits to membership , or is affiliated directly or indirectly with an organiza-
tion which admits to membership , employees other than guards.
Subsection ( 3) of Section 9(b) was added to the National Labor Relations Act
of 1935 7 by the amendments of June 1947 .8 Subsections ( 1) and ( 2) were also
added at the time. They are not in issue here . Absent these subsections , Section
9(b) with the exception of two minor changes in language, was the same in
the 1947 Act as it was in the 1935 Act. The 1935 Act is commonly referred to
as the Wagner Act, and the 1947 Act is commonly referred to as the Taft-Hartley
Act. The amendments of 19599 left Section 9(b) of the Act unchanged from
what it was in the Taft-Hartley Act. Prior to the 1947 amendment , the Board
placed ' plant-protection personnel in units separate from other employees, but
certified labor organizations as exclusive bargaining representatives which were
also the bargaining representatives of other units Of employees of the- same
employer. Employers contended that the plant-protection personnel were not
employees within the meaning of the Wagner Act. The Board held to the
contrary.'°
On December 2, 1943, the Board held-that Jones & Laughlin Steel Corporation
violated Section 8(5) of the Wagner Act by refusing to bargain with United
Steelworkers of America (CIO) for an appropriate unit of plant-protection per-
sonnel.ll The Board had certified . the Steelworkers as the exclusive bargaining
representative of these employees on. June 5, 1943 . 12 On December 8, 1944, and
4 Texas Industries , Inc, 139 NLRB 365, 366-367; Triboro Carting Corporation, 117
NLRB 775, 777, enfd 251 F 2d 959 (CA. 2).
s Consumers Power Company v. N.L R B., 113 F. 2d 38, 42-43 (C A. 6) ; N L.R B. v.
Bradley Washfountain Co, 192 F 2d 144, 149 (CA 7),
6 Texas Industries , Inc, supra, N L.R B. v . Kohler Company, 220 F. 2d 3, 5-7 (C.A. 7).
- 49 Stat . 449, 29 U S C. Sec. 151 et seq (1946).
861 Stat. 136,.29 U S.C Sec 151 et seq. (1948)
0 73 Stat . 519, 29 U S . C Sec. 151 at seq . (1958 and 1959 Supp ).
10 Stand ird Steel Spring Co, 62 NLRB 660
'1 Jones & Laughlin Steel Corporation , 53 NLRB 1046.
12 Jones & Laughlin Steel Corporation, 49 NLRB 390
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on April 4, 1946, on remand from the Supreme Court, the Court of Appeals for
the Sixth Circuit in N.L.R.B. v. Jones & Laughlin Steel Corporation, 146 F. 2d
718, and 154 F. 2d 932, denied enforcement of the Board's Order. It found in
the latter case that deputized plant-protection employees were employees within
the meaning of the Wagner Act, but that it was improper for the Board to
permit them to be organized by the same union that represented production
employees. The court felt that the obligations of guards as members of the
municipal police force to the municipality, would be incompatible with their
obligations to the union in case of industrial unrest, and strikes on the part of
production employees. The court also stated it was the duty of the Board to
consider the public interest as a material factor in selecting appropriate units for
collective bargaining between Jones and Laughlin, the respondent in that case,
and employees among whom were plant guards and production employees. It
had reached the same result in the earlier case. The guards in that context were
still members of the military service. On June 21, 1945, the Board in Standard
Steel Spring Company, 62 NLRB 660, stated that it did not acquiesce in the
doctrine enunciated by the Sixth Circuit in N.L.R.B. v. Jones & Laughlin Steel
Corporation, 146 F. 2d 718. It denied the employer's petition for dismissal of
the petition for certification as collective-bargaining representative. The em-
ployer sought dismissal because the United Steel Workers of America (CIO), the
petitioner, also, represented production and maintenance employees.
H.R. 3020, 80th Congress, 1st session,13 Title I of which provided for amend-
ment of the Wagner Act, passed the House on April 17, 1947. By this bill,
employees engaged in police work were supervisors, and would be excluded from
the protection they received as employees under the Wagner Act. Title I of S.
1126, 80th Congress, 1st session, which was also designed to amend the Wagner
Act,14 did not include employees engaged in police work within the definition of
supervisor. Under this Senate bill, plant-protection personnel were employees as
provided in the Wagner Act. On May 19, 1947, while the House and Senate
conferees were conferring on H.R. 3020 as passed by the House and as passed by
the Senate, the Supreme Court by a 5-to-4 decision- reversed the Sixth Circuit's
decision in N.L.R.B. v. Jones & Laughlin, 146 F. 2d 718. It held that the Board
properly permitted the guards to choose as their bargaining agent the United
Steel Workers of America (CIO), a union which also represented production and
maintenance workers of the same employer.
The House and Senate conferees who were conferring on H.R. 3020, thereupon
included the present subsection (3) of Section 9(b) of the Act in Title I of the
conference agreement 16 which became Title I of the Labor Management Rela-
tions Act of 1947 (the Taft-Hartley Act). Title I is also identified as the National
Labor Relations Act, as amended. By the new subsection; the Board has been
precluded from deciding that any unit is appropriate for the purposes of collective
bargaining if it includes with other employees individuals employed as guards,
and from certifying a labor organization as the representative of employees in a
bargaining unit of guards if it admits to membership employees other than
guards, or is affiliated directly or indirectly with an organization which admits to
membership employees other than guards.
On June 5, 1947, when the Senate was considering the conference agreement,17
the late Senator Taft, who was one of the Senate Managers at the conference, had
a summary of the differences between the conference agreement and H.R. 3020 as
it passed the Senate printed in the Congressional Record of that date as part of
his remarks on the conference and the agreement reached by the.conferees. The
reference made in the summary to the new subsection (3) of Section 9(b) includes
the following:
Under the language of clause (3), guards still retain their' rights as em-
ployees under the National Labor Relations 'Act, but the Board is instructed
13 Leg Hist., Labor Management Relations Act of 1947 (Govt. Printing Office, 1948),
vol. 1, pp. 158-225.
14 S. 1126, sponsored by Senator Taft, passed the Senate on May 13, 1947, as-H.R. 3020
amended by the Senate Leg. Hist., Labor Management Relations Act of.1947 (Govt.
Printing Office 1948), vol 1, pp. 226-291.
15 N L.R B. v. Jones & Laughlin Steel Corporation, 331 U.S. 416.
16 H. Conf Rept. 510, H.R. 3020, 80th Cong, 1st secs., Leg Hist., Labor Management
Relations Act of 1947 (Govt. Printing Office 1948), vol. 1, pp. 505-533.
17 The conference report was signed by the Managers on the Part of the House and Senate
on June 3, 1947.
POTTER ELECTRIC SIGNAL COMPANY 379
not to place them in the same bargaining unit with other employees, or to
certify as bargaining representative for the guards a union which admits
other employees to membership or is affiliated directly or indirectly with labor
organizations admitting employees other than guards to membership.18
In his oral representation to the Senate on June 5, 1947, regarding the changes
in the Senate bill as accepted by the conferees, Senator Taft also had the following
to say about plant guards:
We accepted a provision regarding plant guards. ' We had exempted foremen
in the Senate bill, but we had not exempted plant guards. The House bill
exempted plant guards, and also time study employees and personnel forces.
We did not accept any of these provisions, except that as to plant guards we
provided that they could have the protection of the Wagner Act only if they
had a union separate and apart from the Union of the general employees.19
In the Senate's further consideration on June 6, 1947, of the conference agree-
ment, Senator Taft answered the charge of Senator Murray of Montana that the
agreement denied plant guards rights they had under the Wagner Act as follows:
By the provision of the House bill plant guards were completely excluded
from the Wagner Act. We compromised with the House by providing that
they should have the protection of the Wagner Act but in a separate unit from
the workers in the plant. That is certainly a change-although a minor one,
nevertheless a reasonable one-and certainly it is a compromise with the ex-
treme position taken by the House.20
It appears to the Trial Examiner from the above that under Section 9 (b) ('3) of
the Act, guards have the same rights to representation that they had under the
Wagner Act provided they are in a unit separate from other employees and are
represented by a union which does not admit to membership employees other than
guards or is not affiliated directly or indirectly with a labor organization that
does. The guards here are in a separate unit, and are represented by an independ-
ent union that admits only guards to membership.
Under the Wagner Act, guards had representation with respect to all their
duties. Their bargaining representative could bargain in regard to nonguard
duties as it also represented units of employees which performed nonguard du-
ties. I am mindful of the Board decisions in representation cases relating to
employees other than guards cited and discussed in Respondent counsel's brief
where the Board included employees with more than one type of duties in the unit
only to the extent of the work done by the employees in the unit.21 In making
these decisions, the Board exercised the wide discretion it has under Section 9(b),
"to assure to employees the fullest freedom in exercising the rights guaranteed by
this Act." 22 The limited presence of these employees in the particular unit per-
mitted their inclusion in the other unit of employees performing the other type of
work which they performed. The wide discretion of the Board was not limited by
Section 9(b)(3) or a similar provision or by a policy it had to apply to guards to
meet the overall requirements of the Act. Guards on the other hand, may be
included only in a guards' unit, and be represented by a union that admits only
guards to membership. If the Union cannot represent them in matters relating to non-
guard duties, then they are denied the representation they had under the Wagner
Act. This was not the intention of the Congress when it enacted Section 9(b)(3)
of the Taft-Hartley Act, which is Section 9 (b) (3) of the Act.
There is no evidence that shows that bargaining with the Union for nonguard
duties as well as guard duties will in any way interfere with the bargaining rights
of other employees of Respondent. Respondent, bargained with the Union with
^ Leg. Hist, Labor Management Relations Act of 1947 (Govt. Printing Office 1948),
vol. 2, p. 1541.
1 Leg Hist., Labor Management Relations Act of 1947 (Govt. Printing Office 1948),
vol 2,, p. 1544.
20 Leg. Hist., Labor Management Relations Act of 1947 (Govt. Printing Office 1948),
vol 2, p. 1572
21 See Carlisle & Jacqueline, 55 NLRB 678, 680-681; Berea Publishing Co, 140 NLRB
516, 519 (•1963) ; Walter and Shirley Cohen d/b/a Tower Cleaners, 97 NLRB 376, 378-
379 (1951) ; The Ocala Star Banner, 97 NLRB 384, 385-386 (1951) ; Coca-Cola Bottling
Company, 94 NLRB 208, 210 (1951).
22 See Pittsburgh Plate Glass Company v. N.L.R B., 313 U.S. 146; N.L.R B. v. Prudential
Insurance Company of America, 154 F. 2d 385 (C.A. 6).
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to the nonguard duties of the guards prior to November 13, 1963, and
is willing to bargain with the Union on a voluntary basis regarding them. Any
impasse that exists between them is due to differences on basic bargainable issues
that relate to guard duties as well as nonguard duties. In a case where represen-
tation by guards' union with respect to nonguard duties would interfere with or
defeat bargaining by employees in other units who perform the same nonguard
work, the Board in its wide discretion under Section 9(b) could limit the scope of
the union's bargaining authorization with respect to nonguard work. But such
situation is not present here.
I conclude and find that in this case wages, hours, and other terms and condi-
tions of employment relating to the nonguard duties of guards are issues of
mandatory bargaining, and Respondent by refusing to bargain regarding them
since November 13, 1963, has violated Sections 8(a)(5) and (1) of the Act.23
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, in connection with
its operations described in section I, above, have a close, intimate and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent engaged in a certain unfair labor practice, I
shall recommend that Respondent be required to cease and desist from such unfair
labor practice and take such affirmative action as appears necessary to effectuate
the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent Potter Electric Signal Company is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act, and International Guards
Union of America is a labor organization within the meaning of Section 2(5) of
the Act.
2. All guards employed by Respondent at its Cincinnati, Ohio, operation, ex-
cluding all other employees, professional employees, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
3. At all times since June 28, 1963, the Union has been and continues to be
the certified exclusive bargaining representative of all employees in the aforesaid
unit for the purposes of collective bargaining within the meaning of Section
9(a) of the Act.
4. By refusing on and after November 13, 1963, to bargain collectively with
the Union as the exclusive representative of employees in the aforementioned unit
in regard to wages, hours, and other terms and conditions of employment relat-
ing to the, nonguard duties of guards, Respondent has engaged in and is engaging
in an unfair labor practice within the meaning of Section 8(a)(5) of the Act.
5. By the refusal to bargain collectively Respondent has interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act, and thereby has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practice is an unfair labor practice affecting
commerce within the meaning of the Act.
Upon the foregoing findings of fact and conclusions of law, and pursuant to
Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Respondent Potter Electric Signal Company, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to wages, hours, and other
terms and conditions of employment relating to nonguard duties of guards it
employs with International Guards Union of America as the certified exclusive
23 N.L.R.B . v. Wooster Division of Borg-Warner Corporation , 356 U.S. 342 ; Town and
Country Manufacturing Co., Inc., et al ., 136 NLRB 1022 , enfd. 316 F . 2d 846 (C.A. 5).
POTTER ELECTRIC SIGNAL COMPANY 381
representative of a unit of Respondents' employees employed as guards at its
Cincinnati, Ohio, operation, excluding all other employees, professional em-
ployees, and supervisors as defined in the Act.
(b) Engaging in any like or related conduct interfering with the efforts of
International Guards Union of America to negotiate for and represent the em-
ployees in the appropriate unit as their exclusive bargaining agent.
2. Take the following affirmative action which will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with International Guards Union of
America as the exclusive representative of all employees in the above appropriate
unit with respect to rates of pay, wages, hours of work, and other terms and
conditions of employment relating to guard duties and nonguard duties, and, if
an understanding is reached , embody such understanding in a signed agreement.
(b) Post at its place of business in Cincinnati, Ohio, copies of the attached
notice marked "Appendix A." 24 Copies of said notice to be furnished by the
Regional Director for Region 9, shall, after being duly signed by Respondent's
representative, be posted by the Respondent immediately upon receipt thereof and
be maintained by it for a period of 60 days from the date of posting, in conspic-
uous places, including all places where notices to employees are customarily
posted. Reasonable -steps shall be taken by the Respondent to insure that said
notice is not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the
receipt of this Trial Examiner's Decision and Recommended Order, what steps
Respondent has taken to comply therewith.25
It is further recommended that unless on or before 20 days from the receipt of
this Trial Examiner's Decision and Recommended Order the Respondent notifies
the said Regional Director , in writing , that it will comply with the foregoing
recommendations , the National Labor Relations Board issue an Order requiring
the Respondent to take the action aforesaid.
u If this Recommended Order is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order be enforced by a decree of the United
States Court of Appeals, the words "a Decree of the 'United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order."
^ In the event that this Recommended Order is adopted by the Board, paragraph 2(c)
thereof shall be modified to read: "Notify said Regional Director, in writing, within 10
days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX A
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 bargain collectively upon request with International Guards
Union of America as the exclusive representative of all employees in the
bargaining unit described herein with respect to wages, hours, and other
terms and conditions of employment relating to nonguard duties as well as
guard duties, and , if an understanding is reached , we will embody such
understanding in a signed agreement . The bargaining unit is:
All guards employed at our Cincinnati, Ohio, operation, excluding
all other employees, and professional employees and supervisors as
defined in the Act.
POTTER ELECTRIC SIGNAL COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) , (Title)
This notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, Feder-
al Office Building, 550 Main Street, Room 2023, Cincinnati, Ohio,' Telephone No.
Dunbar 1-1420, if they have any questions concerning this notice or compliance
with its provisions.