William J. Burns Detective Agency

National Labor Relations Board - Board Decisions

Feb 15, 1943

47 N.L.R.B. 610 (N.L.R.B. 1943)

In the Matter of W. SHERMAN BURNS, RAYMOND J. BURNS, Asi-iT Y
JOHN BURNS, AND WILLIAM J. BURNS, CO-PARTNERS, DOING BUSINESS
UNDER THE FIRM NAME AND STYLE OF WILLIAM J. BURNS DETECTIVE
AGENCY and AMERICAN FEDERATION OF LABOR
Case No. R-4818.-Decided February 15, 1943
Jurisdiction : detective agency.
Investigation and Certification of Representatives : existence of question : re-
fusal to discuss representation concerning guards with partial military status
until United States Army replied to company's inquiry ; election necessary.'
Unit Appropriate for Collective Bargaining : all guards of company employed'
at one plant of an arms corporation excluding the captain and sergeants.
Mr. Peter J. Crotty, for the Board.
Mr. W. She^mman Burns, of New York City, and 31r. William J.
Burns, of Buffalo, N. Y., for the Company.
Mr. Neil J. Cunningham, of Buffalo, N. Y., for the A. F. of L.
Miss Muriel J. Levor, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by the American Federation
of Labor, herein called the A. F. of L., alleging that a question affect-
ing commerce had arisen concerning the representation of the em-
ployees of W. Sherman Burns, Raymond J. Burns, Ashley John Burns,
and William J. Burns, Co-partners, doing business under the firm
name and style of William J. Burns Detective Agency, herein called
the Company,, employed as guards at the Cheektowaga, New York,
plant, of the-Buffalo Arms Corporation, the National Labor Relations
Board ' provided for an appropriate hearing upon due notice before
Francis V. Cole, Trial Examiner. Said hearing was held at Buffalo,.
New York, on January 26, 1943. The Company and the A. F. of L.'
appeared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
1 A motion was made and granted to amend the petition and the title of the case•to set
forth the correct name of the , Company, as above.
47 N. L R. B., No. 81. '
610
WILLIAM J. BURNS DETEICTIVE _AGENCY .. .611
bearing on the issues. The Trial Examiner's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF TIIE COMPANY _
W. Sherman Burns, Raymond J. Burns, Ashley John Burns, and
William J. Burns, Co-partners, doing business under the firm name
and style of William J. Burns Detective Agency, a general partnership,
has an office at Buffalo, New York. The Company engages in a
general detective business and furnishes guards to various manu-
facturing plants in New York State, to which its business is con-
fined . The guards furnished by the Company to the Buffalo Arms
Corporation, at its Cheektowaga, New York, plant, which is engaged
in war work, are alone here involved. We have recently held that
the Buffalo Arms Corporation at its Cheektowaga, New York, plants,
is engaged in commerce within the meaning of the National Labor
Relations Act.2
On these facts we find that the Company is engaged in commerce
within the meaning of the Act.3
II. THE ORGANIZATION INVOLVED
The American Federation of Labor is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company refused to discuss representation with the A. F. of L.
on the ground that the guards had partial military status, unless and
until the Company receives a reply from the United States Army
stating its decision in the matter.
A statement of the Regional Director, introduced into evidence
at the hearing, indicates that the A. F. of L. represents a substantial
number of employees in the unit hereinafter found appropriate 4
2Matter of Buffalo Arms Corporation and United Automobile, Aircraft & Agricultural
Implement Wo; kers of America, C. I 0., Local 141, 46 N L. R. B. 1176.
8 The Board has held that a similar detective agency, engaged in the business of furnishing
guards to shipping companies to patrol the docks and freight of vessels in interstate and
foreign commerce , was engaged in such commerce . Matters of Williams Dimond & Company,
Banning Consolidated Stevedoring Company, American-Hawaiian Steamship Company,
Luckenbach Steamship Company, Inc , Swayne & Hoyt,. Ltd., McCormick Steamship Com.
pany, Hammond Shipping Company, Ltd , W R. Grace & Company, Outer Harbor Dock J
Wharf Company, Inner Harbor Terminal Company , Pacific Port Service Corporation,
Pinkerton National Detective Agency and Patrol Service and Port Watchmen, Local No. 137,
2 N. L R B. 859.
4 The Regional Director reported that the A 'F of L. had submitted 38 designations of
which 34 , dated December 1942 and January 1943, all bearing apparently genuine signatures,
correspond with names on the Company's pay roll of December 31, 1942, containing a total
of 56 names within the appropriate unit.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. 3
IV. THE APPROPRIATE UNIT
The A. F. of L. contends that all of the employees of the Company
employed as guards at the Cheektowaga, New York, plant, of the
Buffalo Arms Corporation comprise an appropriate unit. , The Com-
pany urges , in effect , that plant guards are not an appropriate unit
and should not be permitted to choose a collective bargaining agent
since they are sworn members of the Auxiliary Military Police. We
have frequently found that plant guards hired and paid by employers
are employees within the meaning of the Act and may designate .a
representative for purposes of collective bargaining, even though
they are members of the Auxiliary Military Police.,' Accordingly,
the Company's contention•is rejected.
The sole controversy with respect to the scope of the unit concerns
the sergeant's. The.A. F. of L. desires that the sergeants be included
in the unit. The Company urges that they be excluded on the ground
that they have supervisory authority. It appears that the sergeants
have authority to discharge. While they have no authority to hire,
neither does the captain, whom both parties are agreed should be
excluded. The captain acts as a superintendent of one shift and the
two sergeants act respectively as the superintendents of the two remain-
ing shifts. The patrol duties of the sergeants are, like the captain's,
only incidental to their supervisory work., Inasmuch -as the duties
of the sergeants indicate that they are supervisory employees, we shall
exclude them from the unit.
We find that all guards of the Company' employed at the Cheek-
towaga, New York, plant,'of the Buffalo Arms Corporation, excluding
the captain and the sergeants, 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 em-
ployees 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.
5 Matter of Westinghouse Air Brake Company and United Electrical, Radio & Machine
Workers of America , Local No. 610 , 42 N. L. R. B. 525 ; Matter of'Chrysler Corporation,
Highland Park Plant and Local 114 , United Automobile, Aircraft, and Agricultural Imple-
ment Workers of America, affiliated with the C I. 0., 44 N. L. R B 881 ; Curtiss-
Wright Corporation and American Federation of Labor, 45 N. L R. B 592.
WILLIAM J. BURNS DETECTIVE AGENCY 613
i
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 Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with W. Sherman Burns,
Raymond J . Burns, Ashley John Burns, and,William J. Burns, Co-
partners, doing business under the firm name and style of William J.
Burns Detective, Agency, Buffalo, New York, 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 of Election, under the direc-
tion and supervision of the Regional Director for the Third Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Section 10, of said Rules and Regulations,
among all employees of the Company 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 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, to determine whether or not they desire to be represented by
American Federation of Labor, for the purpose of collective
bargaining.
I