Sealed Power Corp.

National Labor Relations Board - Board Decisions

May 31, 1945

61 N.L.R.B. 1639 (N.L.R.B. 1945)

In the Matter Of SEALED POWER CORPORATION and LOCAL 23, INTERNA-
TIONAL UNION , UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO)
Case No. 7-R-1808.-Decided May 31, 1945
Mr. C. N. Sessions, of Muskegon; Mich., for the Company.
Messrs. Leonard Woodcock and Ora Fox, of Muskegon, Mich., for
Local 23.
Mr. Donald H. Frank, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local 23, International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO), herein called Local 23, alleging that a,question
affecting commerce had arisen concerning the representation of em-
ployees of Sealed Power Corporation, Muskegon Heights, Michigan,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Sylvester J.
Pheney, Trial Examiner. Said hearing was held at Muskegon, Michi-
gan, on February 28, 1945. The Company and the UAW-CIO ap-
peared 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. 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.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Sealed Power Corporation is a Michigan corporation with its main
plants, and principal office in Muskegon Heights, Michigan, where it
is engaged in the manufacture of pistons, piston rings, sleeves, cylin-
61 N. L. R. B., No. 256.
1639
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
der sleeves, and other products used in the prosecution of the war.
The Company is engaged solely in war production. The Muskegon
Heights plants are the only operation of the Company involved in this
proceeding. One of these plants is Government-owned and company-
operated ; the other is owned and operated by the Company. About
15 percent of the machinery in the plants is leased by the Company
from the Defense Plant Corporation and the Navy. During 1944 the
Company purchased for the use of its Muskegon Heights plants raw
materials valued at approximately $1,500,000, of which approximately
60 percent was shipped to the plants from points outside the State of
Michigan. During the same year, the Company manufactured at
these plants finished products valued at approximately $6,000,000,' of
which approximately 75 percent was shipped to points outside the
State of Michigan.
The Company admits for the purpose of this proceeding that it is
engaged in commerce within the meaning of the.National Labor
Relations Act. -
II. THE ORGANIZATION INVOLVED
Local 23, International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, UAW, affiliated with
the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company.'
III. TILE QUESTION. CONCERNING REPRESENTATION
The Company has refused to bargain for its plant-protection em-
ployees at the Muskegon Heights plants on the ground discussed in
Section IV (infra). .
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that Local 23 represents a substantial number of
employees in the unit sought.2
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.
1 The original petition herein was filed by an international representative of the-
UAW-CIO on behalf of its Local 637 At the hearing , the international representative
who appeared on behalf of the Local moved to amend the name of the petitioner to
Local 23 The Trial Examiner granted the motion. Local 637 is the Local which
is presently the collective bargaining representative for the production and maintenance
workers , whereas the record reveals that Local 23 is a chartered labor organization
admitting to membership only the plant -protection employees in the Muskegon area
2 The Field Examiner reported that Local 23 submitted 13 application -for-membership
cards, all of which bore apparently genuine original signatures ; . that the names of
5 persons appearing on the cards were listed on the Company ' s pay roll of December 28,
1944, which contained the names of 15 employees in the unit sought , and that the cards
were dated : 1 in January, 5 in February , 1 in April , 1 in July, and 4 in October 1944,
and 1 was undated . All of the cards except 1 designated the International Union only.
SEALED POWER CORPORATION
IV. THE APPROPRIATE UNIT
1641
Local 23 seeks to represent the Company's plant-protection em-
ployees. Originally, the petition set out a unit of plant-protection
employees to be added to the unit of production and maintenance em-
ployees now represented by Local 23's coafliliate, Local 637. With the
change in the designation of the petitioner to Local 23,, the union
representatives at the hearing stated that the unit sought remained
the Company's plant-protection employees, but since Local 23 is or-
ganized solely for the purpose of representing such employees, it was
no longer their desire to incorporate these employees into the unit now
represented by Local 637. Except for the fact that both locals have
the same parent organizations, there is no connection between Local
637 and Local 23. They have different officers, different representa-
tives, different meeting places and meeting times, and different griev-
ance committees which meet separately. The Company stipulated
that if the Board determined any unit of plant-protection employees
to be appropriate in the instant case, it should be a unit composed of all
plant-protection employees, whether or not militarized. It is the
Company's contention, however, that plant-protection employees do
not constitute an appropriate unit. It argues that to allow such em-
ployees to be represented collectively by a labor organization would
subject them to conflicting loyalties and, therefore, not effectuate the
purposes of the Act.' This contention has been considered at length
in previous decisions of the Board and found to be without merit.,
For the reasons stated in those cases, we do not agree that the duties
of these employees as hereinafter stated render their status managerial,
or that there is such incompatability between union membership and
faithful performance of their duties as to warrant a denial to them of
an opportunity to bargain collectively under the protection of the Act.
All of the plant-protection employees of the Company are deputized
and all but two of them are members of the auxiliary military police.
All of them are uniformed, but none of them carry arms and have
not done so for the past 11 months. The two plant-protection em-
ployees who are not militarized have not taken the official oath because
they are the two most recently engaged of the employees in the unit
sought and by the time they were hired the drop in war production was
'The Company relies on the decision of the United States Court of Appeals for the
Sixth Circuit in N. L. R. B. v. Jones if Laughlin Steel Corporation, 146 F. ( 2d) 718' (C. C. A.
6) We do not acquiesce in the doctrines enunciated in that decision and in the later
decision of the United States Court of Appeals for the Seventh Circuit in N. L. R. B. V. E. C.
Atkins and Company, 147 F. (2d) 730 (C. C. A. 7).
*Matter of International Harvester Company, Milwaukee Works, 61 N L. R. B. 912;
Matter of The Babcock & Wilcox Company, 61 N L. R. B . 529; Matter of Bethlehem Steel
Company, 61 N. L. R. B 892; Matter of Rohm if Haas Company, 60 N. L. R. B: 554; Matter
of Budd Wheel Company , 52 N. L R. B 666 ; Matter of Dravo Corporation, 52 N. I, R. B,
322 ; Matter of Chrysler Corporation , 44 N. L. R. B. 881,
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered as making the oath unnecessary. There has been no com-
munication from the officers of the Army in charge df plant protection
in this district for more than 1 year, and the Company makes no reports
on plant-protection activities to the Army. In the face of Army
Circular No. 15, March 17, 1943,5 the Company hires and discharges
plant-protection employees without consulting or obtaining the ap-
proval of the Army. The Army has never recommended to the Com-
pany the dismissal of any of its plant-protection employees. More-
over, plant-protection employees quit their jobs with the Company
,without permission from the Army. Promotion of these employees is
handled solely by the Company.
If a violation of a plant rule is observed by any plant-protection
employee, he reports it to his superior who, in turn, reports it for
the purpose of disciplinary action to the person in charge of the
violator; thus the plant-protection employees do not discipline any
of the production and maintenance employees directly. These plant-
protection employees perform a variety of normal guard functions.
Some receive visitors at the lobby and issue visitors' passes; some
check passes at the gates; some check the badges of employees and the
truck licenses at the truck entrances; others make the rounds watching
for fire hazards and any unusual or suspicious circumstances. We find
that these plant-protection employees are not supervisory employees
within our usual definition.
As noted above, the Union contends and the Company agrees, sub-
ject to its general objections, that the unit should include the two
plant-protection employees who are not militarized. These employees,
like the.others, are deputized and serve in a monitorial capacity.
Inasmuch as they are too few in number either to comprise a feasible
separate unit 6 or to impair effective control by military authorities
over the plant-protection employees who are members of the auxiliary
military police, we perceive no reason to exclude them. We shall,
therefore, include the non-militarized guards in the unit hereinafter
deemed appropriate.
The Company and Local 23 agree that the chief and the sergeant
of the plant-protection employees are supervisory employees within
our usual definition and we shall exclude them from the unit.
We find that all of the Company's plant-protection employees at
the Muskegon Heights plants, excluding the chief and the sergeant
of the plant-protection employees and any other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
°For discussion of Circular No 15 in full, see Matter of International Harvester
Company, Milwaukee Works (supra).
° Cf. Matter of Dravo Corporation (supra ) ; Matter of Rohm t Haas Company ( supra).
SEALED POWER CORPORATION 1643
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
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election 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 Rela-
tions 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 Sealed Power
Corporation, Muskegon Heights, Michigan, 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 super-
vision of the Regional Director for the Seventh 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 Regula-
tions, 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 the 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 any 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 Local 23, International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America (UAW-CIO).