Radio Corp. of America

National Labor Relations Board - Board Decisions

Mar 19, 1948

76 N.L.R.B. 826 (N.L.R.B. 1948)

In the Matter of RADIO CORPORATION OF AMERICA (R. C. A. VICTOR
DIVISION), EMPLOYER and INTERNATIONAL -BROTHERHOOD OF ELEC-
TRICAL WORKERS, A. F. L., PETITIONER
Case No. 6-RC-9.-Decided March 19, 1948
Mr. J. M. Clifford, of Camden, N. J., for the Employer.
Messrs. A. R. Johnson and A. 0. Babish, of Pittsburgh, Pa., for the
Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Pitts-
burgh, Pennsylvania, on December 5, 1947, before W. G. Stuart Sher-
man, hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Radio Corporation of America, a Delaware corporation, through its
R. C. A. Victor Division, is engaged in the manufacture, sale, and
distribution of recordings or records. It operates a plant at Canons-
burg, Pennsylvania, the only one involved in this proceeding.
The value of the raw materials used at the Canonsburg plant from
October 1, 1947, to November 15, 1947, exceeded $29,000, of which more
than 50 percent was received from points outside the State. The
value of the output of this plant during the same period was $47,000,
of which more than 50 percent was shipped to points outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
76 N. L. R. B., No. 115.
826
RADIO CORPORATION OF AMERICA 827
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Employer and the Petitioner agree that a unit of production
and maintenance employees, excluding office clerical employees and
supervisors, is appropriate for bargaining purposes. The Employer
would exclude, and the Petitioner would include, four employees who
work 1 week a month as watchmen and the balance of the month as
janitors. As watchmen, their duties are to control admissions to the
plant, to prevent employees from removing packages from the plant
without a pass, to report fires, and to quell disturbances among other
employees., As janitors, they do clean-up work about the plant.
An employee who devotes all his working time to duties like those
performed by the four employees in question in their capacity as
watchmen has been held to be "employed as a guard" within the
meaning of Section 9 (b) (3) of the amended Act,2 and, therefore,
properly excluded from a unit of production and maintenance em-
ployees.3 The instant case raises the further question whether to in-
clude in a production and maintenance unit employees who devote
much less than half their working time to duties as watchmen and
the rest of their working time to maintenance duties. The question
in the Hill case was whether watchmen were guards; the issue here is
whether these men are watchmen.
Section 9 (b) (3) does not in our opinion unequivocally require that
we consider to be "employed as a guard" every employee who spends
any part of his working time, however insignificant, in performing the
duties described in that section. It seems to us equally, if not more,
reasonable to consider an individual to be "employed as a guard"
They are not deputized, armed* or uniformed and have no monitorial or supervisory
duties
2 Section 9 (b) (3) provides:
"That the Board shall not . . . decide that any unit is appropriate for such pur-
poses 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 ; but no labor organi-
zation shall be certified as the representative of employees in a bargaining unit of guards
if such organization admits to membership, or is affiliated directly or indirectly with
an organization which admits to membership, employees other than guards.-
3 Matter of C. V. Hill & Company, Inc., 76 N. L. R. B. 158.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only if his guard duties constitute a dominant aspect, and not merely
an incidental feature, of his total work pattern.
Inasmuch as none of the four janitor-watchmen in the instant case
is engaged predominantly in work as a watchman or "guard," we find
that they are not employed as "guards" but as janitors, and we shall,
therefore, include them in the unit as maintenance workers.4
We find that all production and maintenance workers at the Em-
ployer's Canonsburg plant, including janitors, but excluding office
clerical employees, guards, and supervisors,] constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Radio Corporation of America
(R. C. A. Victor Division), Canonsburg, Pennsylvania, 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 di-
rection and supervision of the Regional Director for the Sixth Region,
and subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, 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 during said pay-roll
period because they were ill or on vacation or temporarily laid off,
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, and also excluding employees on strike who are not
entitled to reinstatement, to determine whether or not they desire to
be represented by International Brotherhood of Electrical Workers,
AFL, for the purposes of collective bargaining.
MEMBERS REYNOLDS and MURDOCK, dissenting in part :
We are unable to agree with the action of our colleagues to the
extent that they have included in a production and maintenance unit
' To the extent that our decision herein may be inconsistent with our unit determination
in Matte? of Johnson City Foundry & Machine Works, Inc., 75 N L. R B. 475 , that case
is hereby overruled
Among the excluded categories are group supervisors, assistant foremen , foremen
(maintenance trade ), assistant foremen (packing , shipping and stores ), cost accountant,
senior clerk , key card punch operator ( both senior and junior ), intermediate clerks, secre-
tary , secretary-stenographers , typists ( junior ), telephone -receptionist , nurse , accounting
clerk, tabulating machine operator ( general clerk ), secretary-supervisor (administrative),
plant accountant superintendent, plant manager , personnel manager, secretary to super-
visor-engineering.
RADIO CORPORATION OF AMERICA 829
four employees who work 1 week a month as watchmen and the bal-
ance of the month as janitors.
The majority includes these employees in the unit because they are
engaged "predominantly" in janitorial work, although 1 week each
month they work as watchmen with duties to control admissions to the
plant, to prevent employees from removing packages without a pass,
and to quell disturbances among other employees. In Matter of C. V.
Hill & Company, Inc.6 the Board construed Section 9 (b) (3) of the
Act strictly to find that ordinary watchmen are "guards" within the
meaning of that section. We find no warrant for the conclusion that
the restrictions of Section 9 (b) (3) are applicable to full time watch-
men but not to part-time watchmen. The section provides :
That the Board shall not . . . decide that any unit is appropri-
ate . . . if it includes, together with other employees, any individ-
ual 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; (Emphasis
supplied)
Undeniably each of the four employees in question is an "individual
employed as a guard," and accordingly, the plain language of the sec-
tion bars us from including them in a unit with other employees.
We recognize that the Board has in the past applied the concept of
pro tanto unit inclusion to employees who divide their time between
different jobs, but the terms of Section 9 (b) (3) preclude such action
in the case of watchmen. Moreover, it is apparent that the policy
considerations which prompted the inclusion of Section 9 (b) (3) in
the Act, are just as applicable in the case of part-time watchmen. The
legislative history demonstrates, and we do not believe that our col-
leagues deny, that the Congress was concerned with the possibility that
if guards were included in production units their loyalty to fellow
union nlenlbers might conflict with their duty to report to their em-
ployer derelictions of duty or violations of rules by employees? An
employee who spends only part of his time as a watchman will, of
° 76 N I, R B 158 -
'The House bill defined "supervisors" to include any employee "with police duties or
who is employed to act in other respects for the Employer in dealing with other individuals
employed by the employer" H. R. 3020, 80th Cong., 1st Sess. , 1947, Sec 2 (12) (b). The
House Report explained that the bill excluded the several categories of employees defined
as "supervisors" because "there must be in management and loyal to it persons not sub-
ject to influence or control of unions " In describing the classifications to be excluded for
this reason , the report stated that "Plant policemen and guards prevent disorders and
report misconduct of employees and of unions and their members " H. Rept. No. 245, 80th
Cong, 1st Sess., 1947, p. 16. Sec. 9 (b) (3), which represented a compromise on the
more stringent counterpart in the House bill , nevertheless plainly had the same purpose
and effect of preventing guards from being in a position where there might be a conflict
between loyalty to fellow union members , and duty to the employer.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course, be in a position where there may be a conflict between his loy-
alty to fellow union members and to his employer for only part of the
period of time during which such conflict would exist in the case of a
full time watchman. But we find ourselves unable to grasp or accept a
process of reasoning which concludes that the Congressional purpose
to eliminate the possible conflict of loyalty which exists during the week
each month that these employees work as watchmen, may be ignored
because in 3 other weeks they work in a position where no conflict of
loyalty can exist.