Supreme Sugar Company, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 243 (N.L.R.B. 1981)

SUPREME SUGAR COMPANY. INC.
Supreme Sugar Company, Inc. and United Food and
Commercial Workers International Union,
Local P-1422, AFL-CIO. Case 15-CA-7772
September 23, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 8, 1981, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and sup-
porting briefs, and Respondent filed a brief in sup-
port of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard on March 20, 1981, in Thibodaux,
Louisiana. The charge was filed on July 8, 1980, and
amended on August 8, 1980. The complaint, which
issued on August 13, 1980, alleges that Respondent vio-
lated Section 8(a)(1) and (5) of the Act by refusing, since
on or about January 8, 1980, to adhere to the terms of its
current collective-bargaining agreement with the Charg-
ing Party (Union) with respect to wages, hours, and
other terms and conditions of employment of Respond-
ent's watchmen.
Upon the entire record, my observation of the wit-
nesses, and after due consideration of the briefs filed by
the General Counsel and Respondent, I hereby make the
following findings:'
I Respondent admitted the commerce allegations in the complaint. On
the basis of those allegations and admissions, I find that Respondent is
and has been at all times material herein an employer engaged in com-
merce within the meaning of Sec. 26) and (7) of the Act. Respondent
also admitted, and I find, that the Charging Party is and has been at all
times material herein a labor organization within the meaning of Sec. 2(5)
of the Act.
1. T11t IVII)IDNCL.
In late 1979 or early 1980 a controversy arose between
the Union and Respondent over whether watchmen
should be included in the bargaining unit. Respondent,
upon the retirement of its watchmen, inquired into the
feasibility of employing an independent contractor to
provide the services formerly handled by watchmen. Ul-
timately, Respondent decided against employing an inde-
pendent contractor. Instead, as in the past, it employed a
local applicant to serve as watchman. However, Re-
spondent refused to treat the newly employed watchman
in accord with the provisions of the collective-bargaining
agreement. Respondent argues that its watchmen are
guards and, under Section 9(b)(3) of the Act, should be
excluded since the bargaining unit includes employees
other than guards.
The parties stipulated the Union has continuously
maintained a bargaining relationship with Respondent
since 1945. Even though the Union has occasionally
changed its name, it has remained the same Union. The
parties last agreed to a collective-bargaining agreement
which, by its terms, is effective from August 1, 1979, to
August 1, 1982.
The contract's unit description excludes guards. How-
ever, until the instant controversy, watchmen were treat-
ed as falling within the unit. The testimony showed that
watchmen received pay and benefits in accord with the
contractual classification of laborers. Vacancies in watch-
men positions were posted and filled in accord with the
contract's provisions. Before the instant controversy, no
problem arose over the watchmen's status, and they
were not customarily considered separately in contract
negotiations.
Rahula Cancienne, Respondent's watchman from Janu-
ary 1965 to November 29, 1979, was a member of the
Union, and Respondent regularly deducted his union
dues from his paycheck.
Cancienne's retirement on November 29, 1979, appar-
ently contributed to the instant controversy.
This matter does not involve Cancienne or any of the
former watchmen, but deals with what occurred regard-
ing Cancienne's former position. However, Cancienne's
testimony appears relevant in consideration of the issues
herein.
The record demonstrated that the job duties of the
watchmen have remained constant for several years.
There was substantial accord in the evidence regarding
those duties.
Normally, Respondent employs its watchmen only on
occasions when other unit employees are not involved in
regular work. Generally, the facility's production is shut
down weekends and on holidays. It is on those occasions
when Respondent uses its watchmen.
On an hourly basis, the watchmen clock each of 14
separate watch stations. Those rounds include the watch-
men checking both outside and inside Respondent's
buildings. Cancienne testified he wore no uniform, was
not deputized, and did not carry a gun. He was to report
to one of the bosses, either Norman Diaz or Joseph Har-
rison, any potential sources of property loss or damage,
such as "busted pipe," fires, or any intrusions on the
258 NLRB No. 39
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant property. Cancienne said that after dark, when he
usually worked, everyone, including employees, were
"strangers" to him, and he was to immediately report the
presence of any stranger on Respondent's property to
one of the bosses.
Cancienne carried a key to the plant gate. When all
the employees left it was his responsibility to lock that
gate.
During his rounds of the watch stations Cancienne
checked the CAL boiler and, if its fire were out, he
would try to "put it back on." If he were unsuccessful,
Cancienne reported to one of the bosses.
When Cancienne finished his rounds before the end of
the hour, he would sit in the shipping clerk's office near
a restricted line telephone available for his use until he
started the next hour's rounds.
Cancienne recalled only two incidents2 during the
time of his employment which involved trespass endan-
gering Respondent's property. One involved someone
trying to steal gasoline, the other someone trying to steal
sugar. On both those occasions Cancienne reported the
matter and further action was taken by Diaz and Harri-
son. Cancienne took no direct action against the trespass-
ers.
Although Cancienne's duties included watching for
fires, he had no fire fighting equipment available other
than fire extinguishers, and neither he nor the other
watchmen were trained for fire fighting.
Obra Davis testified he was employed by Respondent
as "watchman" in June 1980. Davis testified he normally
works from 6 p.m. to 6 a.m. when the refinery is closed
down, normally "Friday, Saturday and Sunday, or Satur-
days and Sundays or holidays." Unlike Cancienne, Davis
has not received wages or benefits in accord with the
collective-bargaining agreement provisions relating to la-
borers.
Davis testified that upon his employment he was in-
structed on the "fundamentals of the job" by Harrison
and LeBlanc. "I was to make a round each hour punch-
ing the keys on the clock that I (carry) on my side and
to watch-listen for the buzzers on the CAL plant and
the little boiler-that it would be operating whenever the
refinery is closed down-the little thing would be oper-
ating. If I hear the buzzers going off to go restart them.
If I couldn't restart them to contact one of the supervi-
sors." Davis was asked if he was supposed to look for
anything when he made his rounds. He replied, "Check-
ing for fire. If I see someone unauthorized on the prem-
ises, I am to notify one of them. (Harrison or Diaz)
would be on the-around the mill at all times at the
house. The house is near the mill."
Respondent does not deduct union dues for Davis as it
did for Cancienne.
2 Other incidents were recalled by Respondent's witnesses. The evi-
dence demonstrated that Respondent's facility contains valuable equip-
ment which has occasionally been threatened by persons trespassing on
Respondent's property. There was evidence which gave rise to a uspi-
cion of sabotage by someone familiar with Respondent's operations.
Therefore, there was an inference that some protection may be needed
against either present or former employees.
II. CONCLUSIONS
Respondent contends that even though the watchmen
benefited in accord with provisions of the collective-bar-
gaining agreement before 1980 they were not actually
within the bargaining unit. I find little support for that
position. The watchmen were treated as though they
were in the unit in terms of pay and benefits, watchmen
job vacancies were posted and handled pursuant to the
contract, and watchmen were listed on Respondent's se-
niority lists. Although most of the negotiations did not
specifically involve watchmen, the record supports the
testimony of Respondent President Henry Pelet that no
difficulties arose which necessitated such specific negoti-
ations. Section 9(b)(3) of the Act does not indicate that
the parties to a collective-bargaining agreement are not
free to voluntarily include guards in a unit which in-
cludes nonguard employees.
Therefore, regardless of whether Respondent's watch-
men were guards prior to January 1980, my finding
herein that the parties voluntarily agreed to and did in-
clude them in the unit forecloses any question as to their
entitlement to benefits under the applicable contracts.
The sole question before me is whether Respondent
has violated the Act by refusing to continue to treat its
watchmen under the contract since January 1980.
Since 1947 the Labor Management Relations Act has
provided at Section 9(b)(3) that the Board shall not
decide that any unit is appropriate for the purposes of
collective bargaining "if it includes, together with other
employees, any individual employed as a guard to en-
force against employees and other persons rules to pro-
tect 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 employ-
ees in a bargaining unit of guards if such organization
admits to membership, or is affiliated directly or indirect-
ly with an organization which admits to membership,
employees other than guards." Therefore, the following
questions arose herein:
1. Are the watchmen "guards" under the Act?
2. If so, does Section 9(b)(3) prohibit my finding that
Responden: has a continuing obligation to bargain with
the Union regarding the watchmen? Respondent argues
that such a finding would illegally involve my finding a
unit appropriate even though it includes both guards and
nonguards.
A. The Watchmen's Status as Guards
Section 9(b)(3) of the Act refers to "any individual
employed as a guard to enforce against employees and
other persons .... " In consideration of the issue of
whether watchmen qualify as guards under the above
section, the crucial question here appears to involve the
enforcement authority of the watchmen. In many re-
spects Respondent's watchmen possess characteristics of
guards (e.g., they are the only representative of Re-
spondent present during their shift; their duties include
being on the watch for any trespassers whether "strang-
ers" or employees; and they are responsible to take im-
mediate steps if a trespasser is seen). Nevertheless, the
evidence shows that the watchmen have no authority to
244
SUPREME SUGAR COMPANY, INC.
take direct action such as apprehending anyone on Re-
spondent's property or to otherwise take action such as
issuing citations. The watchmen are not deputized, nor
do they carry guns. However, it is not necessary that the
watchmen have the power of police to compel compli-
ance by violators. It is sufficient that they possess and ex-
ercise responsibility to observe and report infractions.
United Technologies Corporation, Chemical Systems Divi-
sion, 245 NLRB 932, fn. 4 (1979); Lewis F: Dow, Compa-
ny, 111 NLRB 609 (1955); The Wackenhut Corporation,
196 NLRB 278, 279 (1972).
The Board, in situations dealing with the scope of the
term "to enforce" and with similar issues, frequently
looks to the intent of Section 9(b)(3). It is suggested that
Congress, by enacting that provision, intended to insure
that during strikes or labor unrests an employer would
have available loyal plant protection employees who
would enforce rules for the protection of both persons
and property. McDonnell Aircraft Corporation, 109 NLRB
967, 969 (1954).
The record herein offers no indication that any of Re-
spondent's watchmen were or have been disloyal even
though they were in the Union. However, my responsi-
bility does not include questioning congressional intent.
With that intent in mind, it would appear that the
"spirit" of Section 9(b)(3) would include employees who,
like Respondent's watchmen, are the employer's sole
guardians against loss or damage to property during the
times they work.
The record is not disputed that the responsibility of
the watchmen to be on the lookout for "strangers" on
the premises constitutes a significant portion of their
duties. Although incidents involving trespassers have
been rare, the obligation to observe and report is a con-
tinuing one. Moreover, it is the nature of the duties of
guards and not the percentage of time which they spend
in such duties which is and should be controlling. Kolcast
Industries, Inc., 114 NLRB 1311 (1955); Waterboro Manu-
facturing Corporation, 106 NLRB 1383 (1953); The Er-
langer Dry Goods Co., d/b/a Stark's Boston Store, 107
NLRB 23, 25 (1953).
The duties of the watchmen appear similar to those of
the "fire guards (watchmen)" in Beyerl Chevrolet, Inc.,
199 NLRB 120 (1972). 1, like the Board in Beyerl Chevro-
let, find that the duties of the watchmen qualify them as
guards under Section 9(b)(3) of the Act.
B. The Refusal-To-Bargain Allegation
Following the retirement of Rahula Cancienne, Re-
spondent failed to post a watchman job vacancy as it has
traditionally done pursuant to the terms of the collective-
bargaining agreement. Subsequently, on January 10,
1980, Respondent informed the Union that it was consid-
ering subcontracting the watchman position. The vacan-
cy was eventually posted on March 5, 1980. Upon filling
the position with Obra Davis, Respondent refused to
adhere to the terms of the collective-bargaining agree-
ment regarding Davis' pay and benefits. It is in that
regard that the General Counsel alleges that Respondent
violated Section 8(a)(5) of the Act.
The record clearly supports the General Counsel's al-
legation in the above regard. The evidence indicates that
Obra Davis has not been paid time and one-half his regu-
lar rates for Saturday and Sunday work, nor has Obra
Davis received wage rates pursuant to the contract for
holiday work. Davis has not received "supper money"
under the contract and he has failed to receive other
benefits pursuant to the terms of the agreement.
The General Counsel's position is that Respondent
voluntarily agreed to include watchmen in the unit as
late as August 1, 1979, when the present contract became
effective. The General Counsel points out that Section
9(b)(3) of the Act does not preclude the parties from vol-
untarily agreeing to include both guards and nonguards
in a single unit. Therefore, according to the General
Counsel, inclusion or exclusion of guards in a nonguard
unit constitutes a permissive subject of bargaining and,
under the doctrine of N.L.R.B. v. Wooster Division of
Borg-Warner Corporation, 356 U.S. 342 (1958), the par-
ties' agreement to include watchmen in the unit consti-
tutes an enforceable agreement.
However, I must recognize that the instant case in-
volves a broader issue than one of contract enforcement.
The question before me is whether Respondent has re-
fused, and is continuing to refuse, to bargain in violation
of Section 8(a)(5). It is axiomatic that I must first find
that the unit herein continues to be an appropriate unit
even though guards are included. Obviously, the General
Counsel recognizes such a finding to be a prerequisite to
an 8(a)(5) violation in view of the fact that it pleaded
that element in its complaint.
Therefore, I must consider whether Section 9(b)(3) ex-
tends to prohibit the Board from determining that it
would be appropriate for it to mandate the continued in-
clusion of guards in the instant unit. In other words, I
must consider an issue regarding this Agency's authority.
Even though an action for contract enforcement may
form a sound basis for judgment in another forum, is the
Board precluded by Section 9(b)(3) from finding an
8(a)(5) violation in the instant case? I believe that the
statute does preclude the Board from making such a find-
ing.
I view this case as distinguishable from the situation in
Wallace-Murray Corporation, Schwitzer Division, 192
NLRB 1090 (1971), where the Board dismissed an em-
ployer's clarification petition. In Wallace-Murray the
Board found, among other things, that the parties had
entered into a contract despite facts establishing the em-
ployer's awareness that it had the statutory privilege to
discontinue according the union recognition so long as it
insisted on representing the guards as well as the non-
guard employees. Here, the instant collective-bargaining
agreement brings into question whether the Employer
was aware of its statutory privilege. As indicated above,
the recognition clause provides that the unit excludes
"office and clerical employees, professional and technical
employees. guards and supervisors as defined in the Act,
and all other employees." (Emphasis supplied.) Even
though, as found above, Respondent traditionally includ-
ed watchmen in the unit until after November 1979, the
above provision brings into question whether Respond-
ent thereby intended to include employees who fall
within the statutory scheme of guards. Therefore. I do
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not view the instant situation as falling within the Wal-
lace-Murray rule. Moreover, I note in another case in-
volving the guard issue the Board found occasion to con-
sider a clarification petition subsequent to conclusion of
negotiations and the execution of a contract. (Pennisula
Hospital Center, and Pennisula General Nursing Home
Corp., Employer-Petitioner, 219 NLRB 139 (1975).) '
It appears that despite the fact that the parties volun-
tarily agreed to the instant contract and despite Respond-
ent's continued application of the contract to watchmen
until November 1979, 1 am estopped from finding an
8(a)(5) violation in view of the express prohibition of
Section 9(b)(3) "the Board shall not . . . decide that any
unit is appropriate for [the purposes of collective bar-
gaining] if it includes, together with other employees,
any individual employed as a guard." 4 In order to reach
3 Cf. Arizona Electric Power Cooperative, Inc.. 250 NLRB 1132 (1980),
where the Board found an employer unlawfully refused to bargain. The
Board there found that the employer's unlawful action occurred during
the term of a collective-bargaining agreement which included, in its unit,
a supervisor. The Board found that the employer volunteered to include
the supervisor in the unit and that the employer was thereby bound to
adhere to the terms of that agreement until its conclusion. I view the
Act's provisions regarding guards as a more restrictive limitation on the
Board's authority. Therefore, the instant case must be distinguished
4 The wording of Sec. 9(b)(3) is significant. Although the instant
matter does not require a "certification" from the Board. Sec 9(b)(3)
deals with certification only under the second situation expressed there-
in," but no labor organization shall be certified as the representative of
employees in a bargaining unit of guards if such organization admits to
membership . .employees other than guards."
The first situation under Sec. 9(b)(3), which is clearly applicable here,
is couched in broader language and expressly prohibits the Board from
deciding "that any unit is appropriate . . . if it includes, together with
other employees, any individual employed as a guard .... " In that
regard. see Amoco Oil Company, 221 NLRB 1104 (1975), where the
Board found a separate unit of guards was appropriate even though the
union represented employees other than guards, in view of the employer
voluntarily recognizing the union as representative of the guards. In that
case the second situation under Sec. 9(b)(3) did not restrict the Board's
determination since it was not necessary that the Board certify the union.
the 8(a)(5) issue, I must first find that the unit continues
to be appropriate when guards are included. As shown
above, I find that watchmen are guards. I cannot find
that a unit which includes watchmen is appropriate in
view of the above-mentioned prohibition. Therefore, due
to the limitations on the Board's authority, I find that the
General Counsel's case fails. I shall therefore recommend
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Supreme Sugar Company, Inc., is an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Food and Commercial Workers International
Union, Local P-1422, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in any unfair labor
practices alleged in the complaint.
Upon the foregoing findings, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 5
It is hereby recommended that the complaint be dis-
missed in its entirety.
In the instant case I am confronted with both 9(b)(3) situations. I find
that the first situation, which involves the broad prohibition against the
Board deciding "any unit is appropriate" which includes both guards and
nonguards, is controlling. See The William J. Burns International Detective
Agency. Inc.. 134 NLRB 451. 452 (1961).
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the find-
ings, conclusions. and recommended Order herein shall, as provided by
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
246