Cramp Shipbuilding Co.

In the Matter of CRAMP SHIPBUILDING COMPANY and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA , AND LOCAL No. 42 THEREOF Case No. R-4516 SUPPLEMENTAL DECISION AND ORDER REVOKING CERTIFICATION OF REPRESENTATIVES August, 28, 19.13 On December 18, 1942, the National Labor Relations Board issued a Decision and Direction of Elections in the above-entitled proceed- ing., On January 26, 1943, pursuant to the results of the ordered elections, Industrial Union of Marine & Shipbuilding Workers of America, Local No. 42, hereinafter called the Union, was certified as the exclusive collective bargaining representative of three units of the Company's employees, including a unit of leadingmen. On May 19, 1943, on the basis of the Board's Decision in Matter of The Mary- land Drydock Company ,2 which issued subsequent to the Decision in the instant case, the Company filed a motion to reopen the instant proceeding and to revoke the certification of the Union as the col- lective bargaining representative of its leadingmen. On May 25, 1943, the Union filed an answer to the Company's motion. On May 27, 1943, the Board issued an order to show cause why the motion of the Company should not be granted. Thereafter the Company filed a reply and the Union filed a rejoinder. On July 13, 1943, pursuant to notice served upon all parties, a hearing for the purpose of oral argument on the Company's motion was held before the Board at Washington, D. C. The Company and the Union appeared. The Board has considered the motion of the Company, the Union's answer, the Company's reply to the Union's answer, the Union's rejoinder, and the oral argument, and hereby grants the motion of the Company for the reasons set forth below. In the Maryland Drydock case, referred to above, the Board held that supervisors could not constitute an appropriate unit within the 146 N L. R. B. 115. 9149 N. L. R. B. 733. 52 N. L. R. B., No. 38. 309 310 DECISMONS OF NATIONAL LABOR RIELATIOI' S BOARD scope of the Act and dismissed petitions seeking separate units of temporary supervisors, working leaders, and leaders. There is no dispute in the instant case that the leadingmen involved herein are supervisors and exercise as much supervisory power as the temporary supervisors in the Maryland Drydock case. In our Decision in the instant case we stated, In the Company's supervisory heirarchy the quartermen and leadingmen perform those functions generally attributed to minor supervisors. They assign work, prepare and follow up jobs, and see that production standards are maintained both as to quantity and quality of output. Their supervisory powers are not ex- tensive. Thus, they only recommend disciplinary action, promo- tions or advancement, and discharge. Quartermen and leading- men are paid by the hour at rate differentials above that of the highest rated mechanic whom they supervise. * * * Leading-. men lead from 20 to 50 men. Thus the fundamental issue in this proceeding is, granting that lead- ingmen are supervisors as defined in the Maryland Drydock case; whether the policy enunciated therein may be applied in a supple- mental proceeding of a case in which a certification issued prior to the adoption of the Maryland Drydock doctrine. The Union argues that once having issued a certification, the Board cannot revoke it. Two grounds are advanced in support of this con- tention : first, that the Board, although given express power by Con- gress in Section 10 (d) of the Act to "modify or set aside, in whole or in part, any finding or order made" in a complaint case, is not given express power to modify or set aside rulings made in repre- sentation cases; and, secondly, that a certification once having issued pursuant to a Decision of the Board becomes in effect a vested property right, which according to legal principles followed by the courts, cannot be subsequently disturbed by an overruling of the earlier Decision. While it is true that the Act contains no express provision granting the Board the power to revoke certifications, it does not necessarily follow that the Board lacks such power. It is equally true that the Act does not prohibit the exercise of such power. Nor does the Act state for how long a period a certification is valid; yet the Board has con- sistently held that a certification which has been in existence for 1 year is no bar to a new determination of representatives. A certification must be viewed as a means for effectuating the policies of the Act. As such, the certification is not intended to be a final order comparable to a judgment rendered in a court,3 but is a determination that may be modified, in which respect it is more nearly analogous to an injunction.. 3 Cf. United Employees Association v. N. L. R. B, 96 F. (2d) 875 (C. C. A 3 1938) American Federation of Labor v. N. L. R. B., 308 U. S. 401. CRAMP SHIPBUILDIING COMPANY 311 So long as the certification operates to• prevent strife which threatens industrial peace, or until a new question affecting commerce arises concerning the representation of employees, it remains effective. But when the certification ceases to effectuate the policies of the Act, or when its continued existence would be contrary to settled principles adopted by the Board in the enforcement of the Act, it may be revoked. In the instant proceeding, the outstanding certification of the Union as the collective bargaining representative of the Company's leading- men places the Board in an anomalous position. Should the Company now refuse to bargain with the Union for its leadingmen, under the Act the normal recourse of the Union would be to file with the Board a charge alleging violation of Section 8 (5) of the Act. Ordinarily, in such a complaint proceeding, provided that not more than a reasonable time had elapsed since certification was issued, the Board's finding of a violation of Section 8 (5) would follow as a matter of course.' But to support the ultimate finding of a violation of Section 8 (5) requires among other findings a subsidiary finding that there is an appropriate unit for which the charging Union has sought to bargain. However, if such a charge were filed in this case, the Company's leadingmen could not be recognized by the Board as an appropriate unit under the Maryland Drydock doctrine. We would be compelled, therefore, to refuse to issue any complaint alleging a refusal to bargain with the Union for the Company's leadingmen, even though the Union had been certified as the collective bargaining representative of the leadingmen. We are of the opinion that it is sounder policy from the standpoint of the most effective administration of the Act, to revoke such a cerifica- tion in a supplemental representation proceeding, than to delay action until the complaint stage has been reached. Upon all of these con- siderations, we find that there is no merit to the Union's argument that the Board has no power under the Act to revoke a certification previ- ously issued. Nor do we agree with the Union that the issuance of a certification confers a private right upon the labor organization certified, which thereafter cannot be disturbed. The Supreme Court of the United States in construing the Act has stated that a proceeding by the Board under the Act is not for the adjudication of private rights, and that the Act "contemplates no more than the protection of the public rights which it creates and defines." 5 A certification of representatives merely declares that a named labor organization is the exclusive repre- sentative of certain employees, and its primary purpose is to induce 4 See Matter of Botany Worsted Mills, 41 N L R.'B 218; Matter of The Century Orford Manufacturing Corporation , 47 N. L. R B 835; and Matter of Appalachian Electric Power Company, 47 N. L R. B. 821. 'See National Licorice Co v N. L. R B , 309 U. S 350, 362, 366 ;. Amalgamated Utility Workers (C I. 0.) v Consolidated Edison Co of New York, 309 U S 261, 265; Inter- national Association of Machinists v. N. L. R. B., 311 U. S. 72, 80; Phelps Dodge Corp. v. N. L. It. B., 313 U. S. 177, 193-4. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining with that representative in accordance with the policies of the Act. That a certification thus declares the exclusive status of one labor organization, as against all other labor organiza- tions, as the party with which bargaining relations must be carried on, does not alter the fact that it is but a means of effectuating the policies of the Act. , Had the Union and the Company entered into a contract in reliance upon our certification, and were that contract still in effect, we would not disrupt the contractual relationship thus established. In this case, however, there is no contractual relation- ship between the Company and the Union respecting the leadingmen. Therefore, the Board is of the opinion that the purpose of the Act would best be effectuated by revoking a certification which declares a labor organization to be the exclusive bargaining representative, and therefore entitled to be recognized as such, of a unit of employees which no longer is appropriate. ORDER Upon the basis of the foregoing findings of fact, the National Labor Relations Board hereby orders that the certification of Industrial Union of Marine & Shipbuilding Workers of America, Local No. 42, as the collective bargaining' representative of the leadingmen of Cramp Shipbuilding Company, Philadelphia, Pennsylvania, be,,and it hereby is, revoked. CHAIRMAN HARRY A. MILLIS, concurring specially : I concur in the majority opinion to the extent that it holds that, in these circumstances, the Board has the power to revoke a previous- ly issued certification of representatives. I also concur in the revoca- tion of the certification of the Union as the collective bargaining representative of the Company's leadingmen, on the basis of my dis- senting opinion in Matter of The Maryland Drydock Company." As stated there, a labor organization representing production and main- tenance employees in one unit, and seeking to represent supervisory employees in another, should make proper provision for the organiza- tional autonomy of the latter group. The record in the instant pro- ceeding indicates that the leadingmen are grouped in what may be called a "cell" within a local representing the production and main- tenance employees; and that any collective bargaining contract cov- ering leadingmen, and approved by them, must be also approved by a vote of the entire local, in which the leadingmen are outnumbered as many as 30 to 1. Because these facts demonstrate that the lead- ingmen do not possess true organizational autonomy, I agree with the result reached by the majority opinion. 6 See footnote 2, supra.