Dravo Corp.

In the Matter of DIIAVO CORPORATION and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA (C. I. 0.) Case No. R-5570.Decided August 30, 1943 Mr. Henry Shore , for the Board. Mr. Frank E. Coho, of Pittsburgh, Pa., for the Company. Mr. Charles Purrkis, of Upper Darby, Pa., and Mr. M. H. Goldstein, of Philadelphia, Pa., for the Union. Mr. Robert Silagi, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon an amended petition duly filed by Industrial Union of Marine & Shipbuilding Workers of America (C. I. 0.), herein called the Union, alleging that a question affecting commerce had arisen concern- ing the representation of employees of Dravo Corporation, Neville Island, Pittsburgh, Pennsylvania, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William F. Guffey, Jr., Trial Examiner. Said hearing was held at Pittsburgh, Pennsylvania, on June 17, 1943. The Company and the Union appeared and participated. 'All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On August 10, 1943, oral argument was held before the Board in Washington, D. C., at which the Company and the Union appeared and particpiated. The United States War De- partment, Navy Department, and Maritime Commission having evinced an interest in this proceeding were duly served with notice of the oral argument but no representative of these departments appeared thereat. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : 52 N. L. R. B., No. 42. 322 DRAVO CORPORATION FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 323 Dravo Corporation is a Pennsylvania corporation which operates two shipyards, one located at Neville Island, Pittsburgh, Pennsylvania, and the other at Wilmington, Delaware. Only the Neville Island shipyard is involved in this proceeding. At this plant the Company constructs landing ships for tanks and destroyer escort vessels for the United States Navy as well as other war materials for the United States Government. During the year 1942, the aggregate value of raw materials used by the Company at the Neville Island plant, con- sisting principally of iron, steel, fabricated material, hardware, lum- ber, and marine engines, exceeded $25,000,000. More than 10 percent of these raw materials was delivered to the shipyard from points out- side the State of Pennsylvania. During the same period the value of the finished products of the Neville Island shipyard was in excess of $30,000,000, 90 to 95 percent of which was shipped to points outside the State of Pennsylvania. About 95 percent of the Company's pro- duction is for the United States Government for use in the war. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED 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 The Company has refused to grant recognition to the Union as the exclusive bargaining representative of its plant-protection employees until the Union has been certified by the Board in an appropriate unit. A statement of the Regional Director, introduced into evidence at the hearing indicates that the Union represents a substantial number of employees in the units hereinafter found appropriate.' 1 The Regional Director reported that the Union submitted 208 application for mein- bershipcards, 171 of which bore apparently genuine original signatures; that the names of 131 persons appearing on the cards were listed on the Company's pay roll of April 17, 1943, which contained the names of 215 employees in the appropriate units ; and that the cards were dated as follows. 2 in 1942, 183 in 1943, and 23 undated. An analysis of the cards in the proper units reveals the following: No. of employ- ees Union cards (a) Guards-------------------------------------------------------------------- 114 56 (b) Watchmen, fleet watchmen, and fireguards-------------------------------- 101 75 215 131 549875-44-vol. 52-22 324 DE,CZSMONS 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. IV. THE APPROPRIATE UNITS The Union seeks a unit comprised of all plant-protection employees at the Neville Island shipyard, excluding supervisory employees. The Company contends that the duties of its plant-protection employees are such that they necessarily come into conflict with the interests of the production and maintenance employees. Since the Union already represents the production and maintenance employees,2 the Company argues that it is improper to permit plant-protection employees to be represented by the same labor organization, albeit in separate bargaining units. In a communication to the Chairman of the Board, a copy of which is in evidence, the United States Army, Navy, and Maritime Commission urge the Board to exclude plant-protection employees who are enrolled as Auxiliary Military Police or in the Coast Guard Reserve of the Navy, from bargaining units of produc- tion and maintenance employees. The unit here sought is composed of guards, watchmen, fleet watch- men, and firemen. All of these employees are hired and paid by the Company which is reimbursed by the Navy for its expenditures on wages, Social Security and Workmen's Compensation taxes. All em- ployees are hourly paid, and their wage rates are set by the Company, subject however, to the approval of the Navy Department. Guards.-In addition to the chief guard, lieutenants and sergeants, who are excluded from the unit by agreement, the Company employs approximately 114 guards. They are attached to the Company's Safety Department, are uniformed and carry firearms. They are en- rolled members of the Coast Guard Reserve, bearing ratings of First Class Petty Officer or Boatswain's Mate. Some 40 guards are like- wise members of the Pennsylvania Volunteer Police Officer Force. Besides being answerable to the Company for the proper discharge of their duties,,the guards are subject to the Articles for the Govern- ment of the Navy, the general orders of the Supervisor of Ship- building of the Navy, and the discipline of the Coast Guard. In general, the guards are responsible for the protection of the shipyard and Government property entrusted to their care. They see that only persons with proper identification enter or leave the plant, and that objects taken from the shipyard are accompanied by clearance passes. They maintain order throughout the plant, partic- ularly at the gates, in the company cafeteria, and among the crowds at 2 As the result of a consent election , the Union is recognized as the collective bargaining representative for the production and maintenance employees. DR:AVO CORPORATION 325 launching ceremonies. They direct traffic on the Company's parking lot and on adjacent public highways. They escort discharged em- ployees through tool and time clearance. They make routine checks of buildings and other plant facilities and make reports of any unusual conditions. They carry master keys to all the locks located in the ship- yard area, and open tool boxes for the employees and keep records of the materials removed and the employees who remove them. The guards-must be alert to all suspicious circumstances and are required to report such things as loafing by employees, refusal of employees to wear proper identification, any unsafe practices which come to their attention, violations of *the law, and possible sabotage. If a guard dis- covers some action by an employee which requires immediate atten- tion, he reports the matter to the foreman of the employee involved. When the matter does not require immediate attention by a super- visor, the guard reports it to the chief guard who reports the matter to various Company officials and to a Navy representative. The guards have discharged their duty when they report incidents to their superior or to a production foreman. They have no discretion as to the type of penalty which is meted out for ii fraction of rules and have no supervisory functions with respect to the production em- ployees but can merely report incidents of employee conduct which are in violations of rules and regulations or which are hazardous to the war effort. Watchmen.-There are about 63 watchmen attached to the Com- pany's Safety Department. They make regular tours of the vessels under construction, checking fire extinguishers and fire hazards gener- ally. They guard the gang planks to the vessels and see that only authorized persons are permitted aboard. They also do sentinel house duty and make records of the entry and exit time, the owner, the driver, and the contents of the trucks entering and leaving the shipyard. Watchmen's duties are more limited than those of the guards. They are not uniformed, do not carry firearms, and are not members of the Coast Guard or volunteer police. The Company uses the watchmen as the source from which it recruits its guards. Fleet watchmen.-There are six fleet watchmen who tend floating equipment, Navy vessels and privately owned vessels in the shipyard, after construction has been completed but before they are completely outfitted. They are responsible for mooring finished vessels and for moving vessels under construction from one outfitting berth to another. Properly speaking, these employees are under the supervision of the superintendent of Marine Railways and are not part of the Safety Department. However, all parties consider them to be a part of the Company's plant-protection service. Like the watchmen, the fleet watchmen are not members of the Coast Guard Reserve. 326 D'EOISILONS OF NATIONAL LABOR RELATIONS BOARD Fire guards.-Under the ultimate jurisdiction of the Safety Depart- ment is a staff of approximately 32 fire guards. They extinguish fires, make daily inspections of buildings for fire hazards, and check fire- fighting equipment. They are responsible for seeing that production employees use proper precautions while welding, burning, using air and gas cylinders, blow torches, and other potential incendiary imple- ments. They are authorized to stop the operations of production em- ployees who work in a manner which constitutes a fire hazard until those employees' foremen can be summoned, and the hazard elim- inated. They make up detailed reports on all fires and on their inspec- tion tours. The fire guards too are not militarized. - The parties agree that the superintendent of fire protection is a supervisory employee who should be excluded from the unit. The Company contends that three pumpers are also supervisory employees who should be excluded, whereas the Union seeks to include them. The record shows that pumpers, one of whom is assigned to each shift, work the same hours and receive the same pay and vacation allowances as do the fire guards. Their supervisory duties are extremely minor and they do not possess the authority to discipline or to recommend discipline. We find that they do not exercise such authority which should require them to be excluded from the appropriate unit. We turn now to the consideration of the various contentions made by the Company in support of its argument that the unit herein sought is inappropriate. The Company first contends that the plant-protec- tion employees are a part of management. Despite the peculiar rela- tionship which plant-protection employees bear to management, they are not to be denied any of the rights or privileges granted under Sec- tion 7 of the Act.' We have often held, as we do now, that plant- protection officers exercise monitorial and not supervisory functions. The record in the instant case affords ample evidence that the guards have no disciplinary authority over the production and maintenance employees, so that while disciplinary measures may result from a re- port made by a guard, such action is the conduct of the supervisor of the employees involved, and not the conduct of the guard.4 At the oral argument the Company urged that plant-protection employees perform managerial functions which are delegated to them by the Company's Board of Directors. While it is true that management may have partially delegated certain duties to plant-protection employees, this does not mean that such employees are deemed to be a part of management or should not be regarded as "employees" within the meaning of the Act. This Board has never held that the acts of plant guards are unfair labor practices which can be imputed to an employer in the absence of circumstances indicating' that the employer author- 8 See Matter of Chrysler Corporation, Highland Paik plant, 44 N L R B. 881. 4 See Matter of Federal Motor Truck Company, EO N L R B. 9. DRAW CORPORATION 327 ized or ratified the conduct in question. In this respect, guards and other plant-protection employees are quite different from foremen or other supervisory personnel. In the second Maryland Drydock deci- sion 5 we expressly overruled such a contention saying, "the considera- tions which impelled a majority of the Board recently to hold that supervisory employees may not constitute appropriate bargaining units are here inapplicable." This proceeding presents no novel situa- tion of fact which would lead us to depart from that rule. The second argument raised by the Company deals with a pos- sible conflict of interest which may arise when plant-protection em- ployees join a labor organization. We give no weight to the implica- tion that membership in a union tends to undermine the honesty of plant-protection employees or their competence to execute their duties satisfactorily. Self-organization for collective bargaining is not in- compatible with efficient and faithful discharge of duty. Should the performance of an employee deteriorate, the Company always has re- course to its normal disciplinary authority to insure the maintenance of its standards of work. We come now to the question whether the militarization of guards alters the character of their employment. It cannot seriously be con- tended at this time that guards who are sworn into temporary mem- bership in the armed services lose thereby any of the benefits of the Acts On this issue, the petitioner and the Company are far apart in their contentions, the Union arguing that the fact the guards are sworn into reserve membership in the armed services is no reason for segregating them from other employees, whereas the Company,urges that this should prevent these employees from being represented by any union which represents any other category of personnel employed by the corporation. In our view, neither contention can be supported. We cannot regard the induction of the guards into the Coast Guard Reserve as a meaningless act, since it does indicate that such persons from the nature of their oaths then owe allegiance directly to the Government, as well as to the corporation. The services do not con- tend, however, that such persons thereby become Government em- ployees and are therefore outside the provisions of the,Act. Nor would the facts in this case support such a contention, for it is clear that the wages and duties of this group of personnel remained un- changed after their induction so that it is apparent that the prox- imate relationship of employer and employee still exists between the Company and the guards. We therefore feel constrained to hold that the guards, as well as other employees, are free to select their own bargaining representatives under the Act. See Matter of The Maryland Drydock Company, 50 N L R. B 363 6 See Matter of Consolidated Steel Corporation , Ltd., 51 N L. R. B. 333 and cases cited therein. 328 DECISFOTTS OF 1VATIONAL LABOR RIELATIONS BOARD The militarization of plant-protection employees, while no obstacle to unionization, is nevertheless significant. As civilian auxiliaries of a military force, the guards have greater duties and obligations than have those plant-protection employees who are not militarized. To the end that the guards may be better able to function within the mil- itary sphere, and to permit the military authorities to exercise greater control over the guards, we shall establish a bargaining unit for all militarized plant-protection employees separate and apart from those who are non-militarized. We contemplate that the separation of the bargaining units in their negotiations with the Company and their day to day activities will be one of fact, not merely form. Since the petition for the non-militarized plant-protection employees does not raise the problem of merging them with the main unit of production and maintenance employees, we find it unnecessary to decide that question here. We find that all guards of the Company who are enrolled members of the Coast Guard Reserve, excluding the chief guard, lieutenants and sergeants and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of, Section 9 (b) of the Act. We further find that all watch- men, fleet watchmen and fire guards, including pumpers, but excluding the superintendent of fire protection, and any other supervisory em- ployees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees, or effectively recommend such action, constitute a separate 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 elections by secret ballot among the em- ployees in the appropriate units who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tions herein, subject to the limitations and additions set forth in the Direction. DIRECTION-OF ELECTIONS 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 DRAVO CORPORATION 329 DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Dravo Corpora- tion, Neville Island, Pittsburgh, Pennsylvania, separate elections 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 Sixth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regula- tions, among the employees in the units 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 those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Industrial Union of Marine & Shipbuilding Workers of America, (C. I. 0.), for the purposes of collective bargaining. CHAIRMAN MIILIs took no part in the consideration of the above Decision and Direction of Elections.