Bethlehem-Sparrows Point Shipyard, Inc.

In the Matter of BETHLEHEM-SPARROii'S POINT SHIPYARD, INC. and LOCAL 33, INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA, C. I. O. I Case No. R-5167.-Decided May 11, 19,W. Cravath, deGersdorff, Swaine cfi Wood, by Messrs. C. A. McClain and E. E. Buchanan, of New York City, for the Company. Mr. Edward L. Denhardt, of Baltimore, Md., for the Union. Mr. Robert Silagi, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE - Upon a petition and amended petition duly filed by Local 33, In- dustrial Union of Marine & Shipbuilding Workers of America, C. I. O', herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of the employees of Bethle- hem-Sparrows Point Shipyard, Inc., Sparrows Point, Maryland, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Earle K. Shawe, Trial Examiner. Said hearing was held at Baltimore, Mary- land, on April 13,1943. The Company appeared specially to contest the jurisdiction of the Board. The Union entered a general appear- ance. All parties participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing, the Company made two motions to dismiss the petition, the first on the ground that count- ers, whom the Union herein seeks to represent, are not employees within the meaning of the Act and the Board is therefore without jurisdiction; and the second on the ground that the unit set forth in the petition is not appropriate. For the reasons set forth in Section IV, infra, the motions are hereby denied. The Trial Examiner's rul- ings made at the hearing are free from prejudicial error and are hereby affirmed. On April 20, 1943, the Company filed a brief and on that 49 N. L. R B, No. 108. 762 BETHLEHEM-SPARROWS POINT SHIPYARD, INC. 763 date the Union sent the Board a letter in lieu of a brief, both of which the Board has considered. • Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Bethlehem-Sparrows Point Shipyard, Inc., is a Delaware corpora- tion engaged in the construction of ships at the -shipyard which' the Company operates at Sparrows Point, Maryland. During the cal- endar year 1942, the 'aggregate value of all material used by the Company in such work was in excess of $24,000,000; of which more than 82 percent was delivered to said yard from points outside- the .State of Maryland, and more than 70 percent of which was used in the construction of ships for the United States Government. During the same period, the'aggregate amounts billed by the,Company for such work at the Sparrows -Point yard were in excess of $45,000,000, Of which more than 49 percent was billed in respect of work on ships for the United States Government. ' We find that the-Company is engaged in commerce within the mean- ing of-the National Labor Relations Act. H. THE ORGANIZATION INVOLVED Local 33, Industrial Union of Marine & Shipbuilding Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. ' III. THE QUESTION CONCERNING REPRESENTATION As a result of a consent election conducted by the Board's Regional Director in September 1941, the Union was recognized as the collective bargaining representative of certain employees of the Company. Counters and group' leaders of counters did not participate in that election nor were they included in the contract which was subsequently entered into by the Company and the Union. This contract is, still in force and covers production and maintenance employees in general. On March 11, 1943, representatives of the Union requested the Com- pany to recognize the Union as the exclusive representative of the counters for the purposes of collective bargaining. The Company refused to accord the Union such recognition on the ground that the unit is not appropriate and on further ground that counters are not employees within the meaning of the Act. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARRQ) A statement of a Board agent-introduced into evidence at the hearing indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate.:' 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. IV. THE APPROPRIATE UNIT The Union seeks a unit comprised of "all shipyard counters." The evidence indicates that the Union seeks to include, within this unit, group leaders of the counters. Counter leaders devote a majority of their time to counting and certain amounts of their time to instruc- tional work and to assigning jobs to the counters. The Company does not contend that counter leaders should be excluded from a unit of counters if such a unit is found to be appropriate. The Company employs 8 counter leaders, 39 first-class counters, 6 second-class counters, 15 third-class counters, and 17 learner counters. These employees count the number of inches of weld that a welder produces during the day, the number of rivets that a riveter drives, the number of holes reamed by a reamer, and also count work produced by several other categories of employees. After recording the'amount of work done by the piece worker who is being checked, the counter fills out certain forms and, turns them over to office clerks who complete the forms and insert the piece rates. The record clearly shows that counters have nothing to do with the setting of rates, which is a func- tion of the piece-rate department. In the event of 'a dispute with a piece worker over the identity or the number of units produced'during a workday, neither the counter nor the counter leader can make a final decision but must accept the ruling of the supervisor in charge of the particular operation. All the counters are paid on a salary basis and are entitled to the same vacation privileges granted to other salaried employees at the yard. Such privileges are more liberal than vacation privileges to which the production employees are entitled. The Company contends that counters are not employees within, the meaning of the Act because they are the "eyes and ears of the manage- ment" in collecting, checking, and reporting data from which the piece-work pay is determined and from which labor costs and produc- tion''records are obtained. It therefore argues that these employees are confidential representatives of management and, as such, outside 'A Field Examiner for the Board reported that the Union submitted 68 application- for-membership cards, 64 of which bore apparently genuine original signatures and bore the names of persons listed on the company's pay roll of March 15 , 1943. Said pay roll contained a total of 85 names of employees within the appropriate unit. The cards were , dated as follows : 33 in February 1943, 2 in March 1943, and 33 undated. BETHLEHEM-SPARROWS POINT SHIPYARD, INC. 765 the Board's 'jurisdiction. This argument has been considered and rejected by the Board in several recent cases .2 The Company also contends that the unit requested by the Union is not appropriate. In support of its motion to dismiss the petition on this ground, the Company asserts that the interests of counters are identified with those of the management and not with those of the production and maintenance employees. Aside from the -method' of payment and vacation privileges, in nearly all respects the counters utilize the facilities available to ordinary production and maintenance employees and consider themselves to be a part thereof. Since, as we have determined, the counters are employees and entitled to repre- sentation as such for the purposes of collective bargaining, we find no merit in the Company's contention except insofar as it indicates the propriety of setting the counters apart from other employees in a separate unit .3 We find that all shipyard counters including group leaders of counters but excluding the supervisor of counters, the assistant super- visor of counters and the clerks in the office of the supervisor of counters, 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 Within the past few weeks the Company hired about six new counters. The Union objects to allowing these men the right to vote and, therefore, desires that eligibility-be determined by the pay-roll period immediately preceding the date of the filing of the petition. The Company claims that the employees were hired because they were needed to expedite the work of the counters. It also stated that, due to the expansion of its plant personnel, it will hire several addi- tional counters within the next 60 days. The total anticipated in- crease, however, is small. The Company is satisfied with the Board's normal practice with respect to eligibility dates. No substantial reason appearing for deviating from our normal practice, we shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election, subject to additions and limitations set forth in the Direction. 2 See Matter of Cramp Shipbuilding Company and Industrial Union of Marine & Ship- building Workers of America,' Local No 42, 46 N. L. R B. 92; also Matter of Great Lakes Engineering Works and Local 46, Industrial Union of Marine & Shipbuilding Workers of America, CIO, 40 N. L. R B. 1254. 8 The Union stated that it intends to set up the counters as a separate body within tho Local and will seek a separate contract on their behalf. 766 DECISIONS OF NATIONAL LABOR RELATIONS, .BOARD 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 -Rela- tions 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 Bethlehem- Sparrows Point Shipyard , Inc., Sparrows Point, Maryland , an elec- tion by secret ballot shall be conducted as early as possible, but not later than thirty ( 30) days ,from the date of this Direction, under the direction and supervision of, the Regional Director for the Fifth Region , acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 10 (of said Rules and Regu-- lations, among the employees 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 any such 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 Local 33, Industrial Union of Marine & Shipbuilding Workers of America, C. I. 0., for the purposes of collective bargaining. 11