A. F. Publicover and Co.

National Labor Relations Board - Board Decisions

Nov 21, 1961

134 N.L.R.B. 573 (N.L.R.B. 1961)

A. F. PUBLICOVER AND COMPANY 573
of the unrepresented employees as a fringe defect in the existing unit.
It is rather late, we think, to take issue with the well-established Board
principle that, in any given situation, several units may be deemed
appropriate, albeit one might be more appropriate than another.18
Moreover, we see no valid basis for allowing the fortuity of the
Petitioner's request for the more comprehensive unit to have control-
ling weight. Our colleagues would, we assume, have little difficulty
with directing a self-determination election among these employees,
if the Petitioner had sought only to add these employees to their exist-
ing unit.
Accordingly, we would direct a separate election among the pre-
viously unrepresented employees.
16 We do not agree that the Zia rule is inI derogation of the Board ' s responsibility to
determine the appropriate unit From its earliest days the Board has made use of the
self-determination election, see , e g, Globe Machine and Stamping Company, 3 NLRB 294;
Armour & Company, 40 NLRB 1333, and the courts have approved the validity of its use,
see N.L R B v Underwood Machinery Company, 179 F. 2d 118 (C.A. 1) ; N.L.R B. v
Weyerhaeuser Company, 276 F. 2d 865 ( C.A. 7), accord , Pittsburgh Plate G lass Company
v. N.L R B., 313 U S. 146, 156, as an aid in determining appropriate units.
A. F. Publicover and Company i and Independent Union of Plant
Protection Employees, Petitioner . Case No. 1-RC-6391. No-
vember 21, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John Madden, hearing offi-
cer. Thereafter, on July 21, 1961, the Board having remanded the
proceeding for additional evidence, the reopened hearing was held
on August 9, 14, 16, and 28, 1961, before Alvin M. Glazerman, 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 in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner seeks to represent the guard employees of the
Employer, which is engaged in furnishing companies with guard
and protective services. The Employer contends that the Petitioner
admits to membership employees other than guards, and is therefore
1 The name of the Employer appears as corrected at the hearing.
134 NLRB No. 64.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
precluded by Section 9(b) (3) of the Act from certification as the
representative of a unit of guards. The Employer's contention is
based-on the representation by the Petitioner of a unit which includes
fire inspectors at the General Electric Company plant in Pittsfield,
Massachusetts. The Petitioner maintains that these inspectors are
guards within the meaning of the Act, while the Employer contends
that they are not.
The plant protection unit of the Pittsfield plant, for which the
Petitioner was certified as the bargaining representative in 1950 (Case
No. 1-RC-1903, not published in NLRB volumes), is composed of 25
guards and 9 fire inspectors, all of whom are uniformed, report to
the same location, and are under the general supervision of the chief
of plant protection. The fire inspectors, like the guards, work on
three shifts. A lieutenant of guards and a lieutenant of fire inspec-
tors, who supervise their respective groups on the first shift, inter-
change with each other when one is absent. On the second and third
shifts, both groups are supervised by the lieutenant, of guards. The
primary duties of the fire inspectors are to inspect and maintain fire
equipment and to carry out -other fire prevention and firefighting
duties. Occasionally, however, fire inspectors, all of whom have been
promoted from jobs as guards, have substituted for and assisted guards
in the performance of guard duties. In addition, each year, the fire
inspectors are sworn in as special police officers by the city of Pitts-
field. They are thereby alzthorized to take action in the event of
violations of the Employer's plant protection rules and misconduct by
employees. The fire inspectors report serious violations in writing to
the lieutenant of fire inspectors or to the chief of plant protection,
and would be subject to reprimand in the event of failure to do so,
whereas, the chief of plant protection testified, rank-and-file em-
ployees would not be expected to report such matters. From the
foregoing and the entire record, it is clear that an ,essential part of
the duties and responsibilities of these fire inspectors is the enforce-
ment of plant protection rules. We find, therefore, that these fire
inspectors are guards within the meaning of Section 9(b) (3) of
the Act.'
Accordingly, we find, as the Petitioner contends, that it is a labor
organization whose membership is limited to guards as required by
Section 9(b) (3) of the Act. The Employer's motion to dismiss the
petition on the ground that the Petitioner admits to membership em-
ployees other than guards is, therefore, hereby denied. We likewise
deny the Employer's motion to dismiss, raised in its brief, on the
ground that the Petitioner is precluded by its constitution from repre-
2 Boeing Airplane Company, Seattle Division , 116 NLRB 1265
PERFECT T .V., INC. 575
senting employees in the industry in which the Employer is engaged.
It is the Petitioner's willingness, rather than its constitutional ability,
to represent these employees which is the controlling factor.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2 (6) and (7) of the Act.
4. In accord with the agreement of the parties, we find that the
following employees of the Employer constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act: All personnel employed by the Employer at its
Boston, Massachusetts, operation, who perform police, guard, and
protection duties, excluding all nonguard personnel and all super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
3 Mayfair Industries , Incorporated, 126 NLRB 223.
Perfect T.V., Inc. and International Brotherhood of Electrical
Workers, Local Union 44, AFL-CIO, Petitioner. Case No.
19-RC-2727. November 21, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing offi-
cer of the National Labor Relations Board. His rulings made at the
hearing are free from prejudicial error and are affirmed.
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.'
2. The labor organization named below claims to represent certain
employees of the Employer.
I The Employer is engaged in Montana in the maintenance of a community TV antenna
system by which it transmits TV signals by cable to its customers. Its annual revenue
is about $70,000 . Paul McAdams is its president and principal owner . McAdams is also
president and principal owner of Yellowstone Amusement Company and Livingston Com-
munity Antenna Association, herein called Yellowstone and Livingston, respectively, and
is an owner and officer of Big Timber TV Cable, Inc. and Western Micro-Wave, Inc., herein
called Big Timber and Western Micro-Wave, respectively. Like the Employer, these com-
panies operate in Montana. Livingston, with an annual revenue of about $80,000, and
Big Timber, whose annual revenue is about $20,000, also provide TV cable service.
Yellowstone operates a radio station and has an annual revenue of about $60,000.
Western Micro-Wave has microwave facilities which pick up the TV signals of major net-
works originating in Salt Lake City, Utah, and relay them to the community antennas, a
service for which it is paid. The record indicates that McAdams administers the various
enterprises owned by him as a single integrated operation. In support of its unit posi-
tion that the appropriate unit in this case should include such cable service repairmen as
are employed by the Employer, Yellowstone, Livingston, and Big Timber, the Employer
134 NLRB No. 81.