West Virginia Pulp and Paper Co.

National Labor Relations Board - Board Decisions

Feb 7, 1963

140 N.L.R.B. 1160 (N.L.R.B. 1963)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferent from those at the Bedford plant, and lower than its own, were,
the result of a bargaining contract, when in fact there was no agree-
ment on wages until a later time.
In Hollywood Ceramics Comnpany, Inc.,' we set aside an election
where a union made a similar misrepresentation. The rule of that
case is equally applicable here. Accordingly, this conduct of the Em-
ployer is sufficient ground for setting aside the election.
The Regional Director further found that other statements of the
Employer were typical campaign propaganda which the employees
were capable of evaluating. We do not agree. A careful review of
these assertions shows that they were designed to implant in the minds
of the employees a fear of economic and physical suffering, the prob-
ability of a loss of benefits, and the hazards of collective bargaining.
Specifically, the Employer indicated that the employees could expect
a strike if the Union won the election. To show its economic power
in this situation the Employer implied that when this occurred, it
would subcontract all its production work, thus threatening the em-
ployees with loss of employment. This statement constitutes a sep-
arate, additional ground for setting aside the election .2
In view of the foregoing, we conclude that the Employer's conduct
interfered with the employees' freedom of choice and warrants setting
aside the election. Accordingly, we shall set the election aside and
order a second one.3
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS, concurring :
I concur in setting aside the election herein, but only for the reason
set forth by the Regional Director.
1140 NLRB 221
2 So,nasmo , Inc, 133 NLRB 1310.
8In the absence of exceptions thereto , we adopt pro foram the Regional Director's
recommendations that objections Nos. 1( a) and ( c), 2(a), (b), ( c), (e), and (f), 3(a)
and (b ), and 4 be overruled. In view of our decision herein, we find it unnecessary to
rule on the issues raised by Petitioner in its exceptions to the Regional Director's recom-
mendations as to objections Nos. 1( e) and 2(d).
West Virginia Pulp and Paper Company ( Hinde & Dauch Divi-
sion , Detroit Plant ) and United Papermakers and Paper-
workers , AFL-CIO, and its Local No. 998 . Ca,ce No. 7-J?-2254.
February 7, 196.3
DECISION AND ORDER CLARIFYING CERTIFICATION
On April 29, 194G, the Regional Director for the Seventh Region
issued a consent determination of representatives determining that the
140 NLRB No. 110.
WEST VIRGINIA PULP AND PAPER COMPANY, ETC. 1161
then incumbent Union 1 was the exclusive bargaining representative of
the following unit at the Employer's 2 Detroit, Michigan, plant : "All
production and maintenance employees except for supervisory em-
ployees, office and clerical employees." On April 5, 1962, the Employer
filed a motion to amend and clarify certification, in which it sought,
inter alia, to exclude guards and watchmen from the bargaining unit.
The Union filed objections to the motion, contending, inter alia, that
the two watchmen-janitors involved were not guards. On July 27,
1962, the Board issued an order remanding the proceeding to the Re-
gional Director for the purpose of conducting a hearing on the issue
raised in the Employer's motion for clarification. Thereafter, on
September 11, 1962, a hearing was held before James R. McCormick,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers herein to a three-member panel [Chairman
McCulloch and Members Rodgers and Leedom].
The Employer is a Delaware corporation engaged in the manufac-
ture of pulp, paper, boxes, chemicals, and related products. This
proceeding involves the Employer's Detroit, Michigan, plant. As
noted, in 1946 the Regional Director for the Seventh Region issued a
determination that the predecessor of the Union was representative of
the employees in a production and maintenance unit. In that deter-
mination, guards were neither included nor excluded from the unit.
Thereafter, the parties entered into a number of collective-bargaining
agreements, the most recent of which is effective from July 7, 1962, to
July 7, 1964. The watchmen-janitors were included in the bargaining
unit under the parties' agreements in 1946 and 1948; they were ex-
cluded from the unit under the 1947 agreement; and in 1953 and there-
after, on the expiration of each of the parties' subsequent agreements,
the Employer requested that the watchmen-janitors be excluded from
the contract unit but, by agreement of the parties, they were included
in the bargaining unit.' On November 26, 1961, an arbitrator held
1 The Union certified in 1946 was the United Paperworkers of America, CIO In March
1957, this Union merged with the International Brotherhood of Papermakers, AFL, to
form United Papermakers and Paperworkers , AFL-CIO In its motion to amend and
clarify, the Employer also requested that the Regional Director' s determination be
amended to show that the "certified" Union Is the United Papermakers and Paperworkers,
AFL-CIO, and Its Local No 998. The Union did not object to this proposed amendment
Accordingly, the determination and all formal papers herein will be amended to reflect
the correct name of the Union.
2 The determination listed the name of the Company as the IIinde & Dauch Paper Com-
pany The Employer , the successor thereto, also moved that the determination be
amended in this respect , and the Union concurred in this proposed amendment We shall
accordingly amend the determination and all formal papers herein to reflect the correct
name of the Employer.
s Article XXVI of the current contract between the parties provides that the status of
the watchmen -janitors , as to whether they shall be included in or excluded from the
bargaining unit, "will be determined " by the Board 's decision on the Employer 's instant
motion for clarification
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Employer had violated the agreement between the parties by
installing a mechanical (ADT) system for detecting fires and un-
authorized entries on its premises, thus eliminating the jobs of the
watchmen-janitors, and he sustained the Union's request that the
watchmen-janitors be reinstated. As noted in April 1962, the Em-
ployer filed the instant motion to exclude the watchmen-janitors from
the unit as guards.
The Union initially contends that in view of the long period of time
which has elapsed since the Regional Director's determination, the
issue herein should be decided through a petition for a new election.
However, where, as here, the unit sought to be clarified has not changed
in any significant manner and the sole issue before the Board is whether
certain employees should be excluded from the unit as guards by com-
mand of the Act, the mere fact that considerable time has passed since
the original "certification" is insufficient grounds for denying the mo-
tion for clarification.4 The Union further contends that under the
Spielberg s rule, the Board is precluded from adjudicating the matter
in view of the foregoing arbitration proceeding. We find no merit in
this contention. The arbitration proceeding relied on by the Union
related solely to the issue whether watchmen-janitors were covered by
the then applicable collective-bargaining agreement between the par-
ties and, therefore, whether the Employer violated that agreement by
eliminating the job of watchman-janitor. The issue in the instant
case, however, is whether the watchmen-janitors are guards within the
meaning of the Act. As the 1961 arbitration proceeding dealt with
an issue which is different from that which is involved in this proceed-
ing, we find that the arbitration proceeding does not foreclose a de-
termination of the Employer's motion for clarification e
We shall now turn to the question of whether the watchmen-janitors
are guards within the meaning of the Act.' The record establishes
that the Employer's production and maintenance employees, about 70
in number, work on 2 shifts, namely, from 7 a.m. to 3:30 p.m. and
from 3:30 p.m. to 12 midnight. The Employer's watchmen-janitors
are on duty during the week between the hours of 10 :30 p.m. and 6 :30
a.m., and almost continuously on weekends. There are no other em-
ployees in the plant during most of the time that the watchmen-
janitors are on duty. The watchman-janitor on duty makes hourly
4 See Sonotone Corporation , 100 NLRB 1127 ; The Mountain States Telephone and Tele-
graph Company , 130 NLRB 388 Monon Stone Companil , 137 NLRB 761, relied on by
the Union, is inapposite There , the Board , in dismissing motions to amend certain
certifications on the ground that they raised questions concerning representation, ex-
presslv relied on the fact that the unit claimed was "substantially different" from the unit
previously certified.
c Spielberg Manufactur ing Company , 112 NLRB 1080.
6 See Montgomery Ward & Co , Incorporated, 131 NLRB 1436, 1438
7 Section 9(b) (3) of the Act defines a guard as an individual who is employed to "en-
force against employees and other persons rules to protect property of the employer or
to protect the safety of persons on the employer's premises "
WEST VIRGINIA PULP AND PAPER COMPANY, ETC. 1163
rounds of the 14 key stations in the plant. Each of these rounds takes
between 20 to 25 minutes. He is required, inter alia, to check all doors,
including the railroad gate and door and gate entrance to the boiler-
room, to "be alert for fire hazards, horseplay and destruction of prop-
erty," to check the parking lot, and to "let no one in without a pass." e
While the watchmen-janitors generally are required to report un-
toward circumstances or incidents to their supervisors, as described
more fully below, they also have authority to take action themselves in
certain stituations. They are not, however, armed, deputized, or uni-
formed. The watchmen-janitors also perform janitorial services, in-
cluding the sweeping of the plant, cleaning out of restrooms, and
similar functions.9 When not otherwise occupied, the watchmen-
j anitors are instructed to remain in the Employer's production office,
where the Employer maintains a listing of the telephone numbers of
the police department, fire department, and other emergency services.
The Union contends that, although the watchmen-janitors possess
certain responsibilities respecting the protection of the Employer's
property against intruders, they are not guards because they have been
instructed to report violations of company rules to their supervisors.
We find no merit in this contention. In a number of cases, the Board
has held that where the employees in question otherwise meet the
statutory requirement for guards, the fact that they do not take per-
sonal affirmative action against violators of company rules is immate-
rial. For example, in St. Regis Paper Co.,10 although the disputed em-
ployees were not authorized to use force or violence in the discharge of
their duties, and were instructed, with respect to violations of com-
pany rules, to call a deputized guard, the Board found that these em-
ployees were guards." In any event, the record establishes, and we
find, that the watchmen-janitors are authorized to take personal ac-
tion to enforce company rules and have in fact exercised such author-
ity. Thus, the watchmen-janitors are authorized to call the police or
other emergency services if the situation requires ;12 they are respon-
sible for apprehending persons who are on company property without
permission and who are found removing company property without
'These instructions are contained in a memorandum from the Employer to the
watchmen-ianltois, dated January 8, 1958 In another memorandum, dated October 21,
1955, the Employer stated: "Your job primarily is plant protection, which includes the
protection and safety of the grounds , buildings , and equipment , and anything that
happens to affect the safety and well-being of the plant , [ it] is your job to report immedi-
ately " The record does not indicate that there has been any change in the responsibilities
of the watchmen -janitors since these memorandums were issued
9 The record does not indicate what percentage of their time is spent in performing
this janitorial work
10128 NLRB 550, 552.
' To the same effect see TVatchmanstors, Inc,., 128 NLRB 903, 904-905: The Carter's
Ink Company , 109 NLRB 1042 ; General Motors Corporation , AC Sparkplug Division,
Milwaukee Plant, 101 NLRB 521, 522, footnote 2
12 It is apparently for this purpose that the employer maintains telephone listings for
the police and other emergency services in its office
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permission; and on one occasion, a watchman-janitor, without consult-
ing his supervisor, barred an employee of the Employer from entering
company premises after hours without a pass. As the watchmen-
janitors herein are responsible for enforcing the Employer's rules
for the protection of the Employer's property, we find that they are
guards within the meaning of the Act and we shall, accordingly, ex-
clude them from the unit.13
[The Board clarified the Regional Director's Determination of Rep-
resentatives by excluding from the unit "watchmen-janitors and all
other guards as defined in the Act," and further amended the aforesaid
Determination and all formal papers by substituting the name "West
Virginia Pulp and Paper Company (Hinde and Dauch Division,
Detroit Plant)" in place and stead of the name "Hinde & Dauch Paper
Company," and by substituting the name "United Papermakers and
Paperworkers, AFL-CIO and its Local No. 998" in place and stead
of the name "United Paperworkers of America, CIO," wherever they
appear therein.]
13 Threads-Incorporated, 121 NLRB 1507, 1510; International Furniture Company, 119
NLRB 1462. The fact that the watchmen-janitors are not armed, deputized, or uni-
formed, and that they spend an unstated portion of their time in performing janitorial
duties, does not require a contrary finding. Armstrong Cork Company, South Gate Plant,
117 NLRB 262; Walterboro Manufacturing Corporation, 106 NLRB 1383. Our recent
decision in The Centor Company, 136 NLRB 1506, is not to the contrary. There the
Board found that certain "landing men," who had been instructed to keep "trespassers"
away from the Employer's barges, were not guards. However, as the Board pointed out
in Centor, those "trespassers" were almost invariably children playing in the area.
Further, unlike the instant case, the "landing men" in Center were not instructed to
request strangers to identify themselves and they were not given specific instructions as
to what action, if any, to take in the event of emergency.
Schill Steel Products , Inc. and United Steelworkers of America,
AFL-CIO . Case No. 23-CA-1445. February 8, 1963
DECISION AND ORDER
On November 28, 1962, Trial Examiner Phil Saunders issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report 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-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
140 NLRB No. 106.