The Babcock & Wilcox Co.

National Labor Relations Board - Board Decisions

Apr 13, 1945

61 N.L.R.B. 529 (N.L.R.B. 1945)

In the Matter of THE BABCOCK & WILCOX COMPANY and PLANT GUARDS
FEDERAL LABOR UNION #23802 (AMERICAN FEDERATION OF LABOR)
Case No. 8-B-1739.-Decided April 13, 1945
Mr. R. C. Landon, of Barberton, Ohio, for the Company.
Messrs. Jesse Gallagher and JaQnes A. Patterson, of Cleveland,
Ohio, for Local 23802.
Mr. Donald H. Frank, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Plant Guards Federal Labor Union
#23802 (American Federation of Labor), herein called Local 23802,
alleging that a question affecting commerce had arisen concerning the
representation of employees of The Babcock & Wilcox Company, Bar-
berton, Ohio, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before Thomas E. Shroyer, Trial Examiner. Said hearing was held
at Cleveland, Ohio, on January 30, 1945. The Company and Local
23802 appeared and participated. All parties were afforded full op-
portunity 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 Boad.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Babcock & Wilcox Company is a New Jersey corporation oper-
ating manufacturing plants in various parts of the United States,
including a plant at Barberton, Ohio, with which we are here con-
cerned. At its Barberton plant, the Company fabricates pressure
61 N. L. R. B., No 72.
529
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vessels and does other special work for the Army and Navy. The raw
materials used at the Barberton plant annually are valued in excess
of $1,000,000, the majority of which comes to it from outside the State
of Ohio. Its products annually are valued in excess of $1,000,000,
the majority of which travels outside the State of Ohio.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act, and we so find.
IT. THE ORGANIZATION INVOLVED
Plant Guards Federal Labor Union #23802, affiliated with the
American Federation of Labor, is a labor organization admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to Local 23802 as
the exclusive bargaining representative of certain of the Company's
employees until Local 23802 has been certified by the Board in an
appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that Local 23802 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
Local 23802 petitioned for a unit consisting of all the plant guards
of the Company at the Barberton plant, excluding the chief of plant
guards. At the hearing, Local 23802 sought to exclude the sergeants
as well. The testimony at the hearing revealed that the sergeants are
supervisory employees in that they issue orders to, discipline, and
change the work of patrolmen. The Company took no position with
regard to inclusions and exclusions, maintaining that any unit of the
plant guards involved herein was an inappropriate one.
All of the Company's guards are militarized, armed, and uniformed.
They are hired by the Company to check the passage of all persons in
and out of the plant gates, to report all suspicious or unsafe circum-
'The Field Examiner reported that Local 23802 submitted 23 authorization cards, 22 of
which bore the names of persons appearing on the Company ' s pay roll of January 15, 1945,
which contained the names of 38 employees in the unit sought . All of the cards were dated
in December 1944.
At the hearing , Local 23802 submitted 11 additional cards bearing apparently genuine
signatures and purporting to have been signed in December 1944, and January 1945, but
which were not checked against the Company's pay roll.
THE BABCOCK & WILCOX COMPANY 531
stances observed, and to take into custody any person guilty of a
violation of the rules. These employees are paid their salaries by
the Company. -
The Company appears to rely on' the reasoning of the decision
of the United States Court of Appeals for the Sixth Circuit, in
N. L. R. B. v. Jones cfi Laughlin Steel Corporation,' contending
that (1) the guards involved represent management by enforcing
the rules of the Company and making confidential reports; that
(2) to establish them as a separate appropriate unit would not
effectuate the policies of the Act; and, moreover, that (3) guards are
not employees of the Company within the meaning of the Act.
These contentions have been considered by the Board and answered
in numerous previous decisions.3 No persuasive argument has been
offered by the Company to encourage departure from the principles
established in those cases.
We find that all of the plant guards of the Company at the Bar-
berton, Ohio, plant, but excluding the chief of plant guards and the
sergeants, and any other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute 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 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. 0
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 Rela-
tions 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 The Babcock &
Wilcox Company, Barberton, Ohio, an election by secret ballot shall
be conducted as early as possible, but not later than thirty (30) days
2146 F ,(2d) 718 (C. C A 6)
'platter of Rohm cC Haas Company, 60 N L R B 554. Matter of Diato Corpora-
tion, 52 N L R. B 322 ; see cases cited therein
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of this Direction, under the direction and supervision
of the Regional Director for the Eighth 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 Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately pre-
ceding 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 repre-
sented by Plant Guards Federal Labor Union #23802 (American
Federation of Labor), for the purposes of collective bargaining.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.