Sullivan Dry Dock & Repair Corp.

In the Matter of SULLIVAN DRY DOCK & REPAIR CORP. and I. B. E. W., LocAL #277, A. F. OF L. In the Matter of SULLIVAN DRY DOCK & REPAIR CORP. and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL 13, C. I. O. Cases Nos . R-32.51 and R-3252, respectively SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES February 20, 1941 On November 28, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Elections in the above-entitled proceeding,' providing that elections by secret ballot be conducted under the direction and supervision of the Regional Director for the Second Region among those employees of Sullivan ,-Dry Dock & Repair Corp., Brooklyn, New York, herein called the Company, who fall within the groups described below : (a) All marine electricians, including snappers, mechanics, and helpers, to determine whether they desire to be represented by I. B. E. W., Local #277, A. F. of L., by Industrial Union of Marine and Shipbuilding Workers of America, Local 13, C., I. 0., for the purposes of collective bargaining, or by neither; (b) All the remaining production and maintenance employees of the Company, excluding foremen, subforemen, supervisors, or anyone in an official capacity on a salaried basis, draftsmen, timekeepers, storekeepers, watchmen, guards, and clerks and office employees, to determine whether or not they desire to be represented by the Indus- trial Union of Marine and Shipbuilding Workers of America, Local 13, C. I. 0., for the purposes of collective bargaining. Pursuant - to the Direction of Elections, elections by secret ballot were conducted on December 22, 1941, under the direction and super- vision of the Regional Director for the, Second Region (New York City). On December 24, 1941, the Regional Director, acting pur- 1 37 N L. R B. 13. 39.N. L. R. B., No. 15. 61 62" DECISIONS OF NATIONAL LABOR RELATIONS BOARD suant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties an Election Report on the ballot. As to the balloting and its results, the Regional Director reported as follows : Group (a) , Total on eligibility list ----------------------------- ------ 117 Total ballots cast________________________________ ----------------------------------------- 83 Total ballots challenged___________________________________ 11 Total blank ballots_______________________________________ 0 Total void ballots----------------------------------------- 0 Total valid votes counted_ ________________________________ 72 Votes cast for Industrial Union of Marine and Shipbuilding Workers of America, Local 13, C I. 0_________________ 13 Votes cast for I. B. E. W., Local #277, A. F of L----------- 57 Votes cast for neither union_______________________________ 2 Group (b) Total on eligibility list____________________________________ 1, 025 Total ballots cast_________________________________________ 746 Total. ballots challenged__________________________ ----------------------------------- 24 Total blank ballots________________________________5 Total void ballots_________________________________________ 5 Total valid votes counted ----------------------------------- 712 Votes cast for Industrial Union of Marine and Shipbuilding Workers of America, Local 13, C. I. 0__________________ 584 Votes cast against afore-mentioned union __________________ 128 On December 30, 1941,.the Company filed objections to the conduct of the election among the employees in group (b). On January 6, 1942, the Regional Director issued a Report on Objections, recom- mending that the objections be dismissed.2 On January 17, 1942, the Company filed exceptions to the Report on Objections. On January 20, 1942, the Board issued an Order directing hearing on objections to the Election Report. Pursuant thereto, the Regional Director issued a notice of hearing on objections to the Election Report, copies of which were duly served upon all the parties. Pursuant to notice, a hearing was held on February 2 and 3, 1942, at Brooklyn, New York, before Charles E. Persons, the Trial Examiner duly- designated by the Chief Trial Examiner. The, Company, Industrial Union of Marine and Ship- building Workers of America, Local 13, herein called the Industrial Union, and the I. B. E. W. were represented and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded .all parties. During the course of the hearing the Trial Examiner No objections were filed with respect to the conduct of the ballot or the Election Report with regard to employees in group (a). SULLIVAN DRY DOCK & REPAIR CORP. 63 made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On February 17, 1942, the Company filed a brief which the Board has duly considered. In its objections, the Company alleged that the secrecy of the ballot was violated in that a seal was removed from a partially filled ballot box without the presence of a representative of the Company, thus permitting the possibility that ballots might have been cast without the presence, knowledge, or observance of the Company. The Com- pany contends that therefore the election among the employees in group (b) is null and void and should be set aside by the Board.3 The elections of ' December 22, 1941, were conducted in two parts. The first part of the balloting took place from 6: 30 to 7: 30 a. m. and the balloting was completed between the hours of 4: 30 and 7 p. m. At the close of the morning balloting representatives of the Industrial Union and the Company sealed the ballot box used in the election among the employees in group (b) and signed their names on the seal. It was understood by all the parties at that time that at the resumption of balloting at 4: 30 p. m. a new ballot box would be utilized. Shortly prior to 4: 30 p. m. representatives of the Board and the Industrial Union arrived at the polls. Only a single representative of the Company was present; thus, it was im- possible to commence balloting at the scheduled time of 4: 30 because of the absence of the other company representatives. Gerard McAllister, vice president of the Company and an observer at the elections, left the polls at about 4: 35 p. m. to seek the other com- pany observers. ' However; within a few minutes after he left, the other company observers arrived and took their places at the re- spective checking tables. A group of approximately 100 employees had assembled to vote by this time, and the Board agent in charge of the election ordered the balloting to begin as soon as the company observers took their places. About 40 employees had received bal- lots before preparation of a new ballot box in which to insert the marked ballots had been completed. In order to avoid confusion among the employees who had already received ballots and those waiting in line to vote, two Board agents, after attempting to locate McAllister and being unable to do so, removed the seal from the ballot box used in the morning and directed the employees to de- 8 The Board has frequently held that the employer is not entitled to have observers at the polling place as a matter of right , and that the presence of employer-designated representa- tives is not necessary to the conduct of a fair and impartial election . See Matter of Fed- ders Manufacturing Company, Inc . and Amalgamated Association of Iron, Steel d Tin Workers of N. A., Lodge 1753, 7 N. L. R . B. 817. However, in the instant case in accord- ance with our customary practice , provision was made for the presence of such observers by prior arrangement. 448105-42-vol. 39-6 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posit their ballots in that box. Approximately 10 minutes later McAllister returned to the polls and, having been apprised as to what happened, immediately lodged a protest with the Board agent. The record discloses that a maximum of 40 employees cast their ballots during McAllister's absence and that no voter was handed a ballot until his name had first been checked on the list of eligible voters both by an agent of the Industrial Union and an agent of the Company. It is also clearly established by the record, and not dis- puted by the Company, that at all times the ballot box was in the custody of Board agents and that all such ballots were placed in the box in the presence of two Board agents. The Company does not challenge the integrity of the Board agents and made no showing that any irregularity in the actual balloting resulted from the conduct of the Board agents 4 We attach vital importance to the maintenance of both complete secrecy and integrity of the ballots in elections conducted by the Board to ascertain employee representatives for the purpose of col- lective bargaining. With this standard in view, we have carefully considered all the evidence adduced at the hearing on the objections to the conduct of the ballot in the instant case. Upon such consider- ation, we are satisfied, and find, that nothing occurred in connection with the conduct of the ballot which in any way impaired either its secrecy or integrity.' Accordingly, the objections- of the ' Company are hereby overruled. In its Decision and Direction of Elections the Board made no final determination as to the appropriate unit or units for the purposes of collective bargaining pending the election to be held among the em- ployees in group (a). The Board stated that if a majority of them chose the I. B. E. W. they would constitute a separate appropriate unit, and that if a majority in each election unit voted for the Industrial Union, they would together constitute an appropriate unit. Upon the basis of the entire record, the Board makes the following: SUPPLEMENTAL FINDINGS OF FACT The appropriate units We find that all marine electricians of the Company, including snappers, mechanics, and helpers, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self- 4 All Board agents present at the election testified at the hearing on Objections and were available for examination and cross-examination by counsel for the Company on all aspects of the conduct of the election. SULLIVAN DRY DOCK & REPAIR CORP. 65 organization and to collective bargaining and otherwise will effectuate the policies of the, Act. We also find that the remaining production and maintenance em- ployees of the Company, excluding foremen, subforemen, supervisors, or anyone in an official capacity on a salaried basis, draftsmen, time- keepers, storekeepers, watchmen, guards, and clerks and office em- ployees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to collec- tive bargaining and otherwise will effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : SUPPLEMENTAL CONCLUSIONS OF LAW 1. All marine electricians of the Company, including snappers, mechanics, and helpers, constitute a unit appropriate for the purposes of collective, bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 2. All remaining production and maintenance employees of the Company, excluding foremen, subforemen , supervisors , or anyone in an official capacity on a salaried basis, draftsmen , timekeepers, store- keepers, watchmen, guards, and clerks and office employees , consti- tute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National La- bor Relations Board by Section 9 (c) of they National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY CERTIFIED that I. B. E. W., Local #277, A. F. of L., has been designated and selected by a majority of all marine electri- cians of Sullivan Dry Dock & Repair Corp., Brooklyn, New York, including snappers, mechanics, and helpers, as their representative for the purposes of collective bargaining, and that, pursuant to Sec- tion 9 (a) of the Act, I. B. E. W., Local #277, A. F. of L., is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. IT IS HEREBY FURTHER CERTIFIED that Industrial Union of Marine and Shipbuilding Workers of America, Local 13, C. I. 0., has been 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD designated and selected by a majority of all the remaining production and maintenance employees of Sullivan Dry Dock & Repair Corp., Brooklyn, New York, excluding foremen, subforemen, supervisors, or anyone in an official capacity on a salaried basis, draftsmen, time- keepers, storekeepers, watchmen, guards, and clerks and office em- ployees, as their representative for the purposes of collective bargain- ing, and that, pursuant to Section 9 (a) of the Act, Industrial Union of Marine and Shipbuilding Workers of America, Local 13, C. I. 0., is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN MILLIS took no part in the consideration of the above Supplemental Decision and Certification of Representatives.