Brown Shipbuilding Co., Inc.

In the Matter of BROWN SHIPBUILDING COMPANY, INC.1 -and INTER- NATIONAL BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER- HANGERS OF AMERICA, LOCAL No. 130 Case No. 16-R-1121.-Decided Jarruoi y 23, 19415 Messrs. Powell, Wirtz, Rauhut, and Gideon, by Cllr. Her'inan Jones, of Austin, Tex., for the Company. Mr. C. A. West, of Houston, Tex., for the Union. Miss Ruth Busch, of counsel to the Board. DECISION AND DIRECTION OF ELICTION STATEMENT OF TIIE CASE Upon a petition duly filed by International Brotherhood of Painters, Decorators and Paperhangers of America, Local No. 130, herein called the Union, alleging that a question affecting commerce had arisen con- cerning the representation of employees of Brown Shipbuilding Com- pany, Inc., Houston, Texas, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due -notice before John H. Garver, Trial Examiner. Said hearing was held at Houston, Texas, on December 20, 1944. The Company 2 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. In its brief, the Com- pany moved to dismiss the Union's petition on the ground that the Board does not have jurisdiction. For reasons stated in Section I, infra, the Company's motion is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Company's request for oral argument is hereby denied. All parties were afforded an opportunity to file briefs with the Board. 'At the hearing , the Trial Examiner on his own motion corrected the name of the Company on all formal papers as set forth above. 'The Company filed a limited appearance for the purpose of contesting the Board's jurisdiction in this proceeding. 60 N. L R. B., No. 39 196 BROWN SHIPBUILDING , COMPANY, INC. 197 Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, which was incorporated May 1, 1944, is engaged exclusively in the construction of combat vessels for the United States Navy. It operates two yards, which are known as "A Yard" and "B Yard," for building purposes. "A Yard" is owned by the Company and "B Yard" is owned by the United States Government which leases it to the Company for $1 per year. Both yards are under the same supervision, direction, and control. The material used by the Company is purchased exclusively for the United States Govern- ment and remains the property of the United States 'Government while work is being performed thereon by employees of the Com- pany. A substantial amount of the materials is shipped from sources outside of the State of Texas. Upon completion, the vessels are deliv- ered to the United States Navy at the Company's yards. The Com- pany maintains an employment office where applicants for employ- ment are hired; it pays employees at the yards with its own checks, and keeps Social Security records for them. Although all actions of the Company in employing or discharging any employees or changing rates of pay must be submitted to the representatives of the Navy Department, 'its foremen and supervisors, according to a stipulation of the parties, "can discharge employees." The Navy can require the discharge of an employee at any time. The Company contends that it is not amenable to our jurisdiction on the grounds that it is not an independent employer within the meaning of the Act, but, merely, an agent of the United States Gov- ernment; and that in the construction of instruments of warfare it is not engaged in activities affecting commerce. These salve contentions were duly considered and rejected by us in prior decisions involving the Company.3 We find that the Company's operations affect commerce,' and that it is an employer, within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED International Brotherhood of Painters, Decorators and Paper- hangers of America, Local No. 130, is a labor organization affiliated 2 Matter of Brown Shipbuilding Company, Inc., 57 N L R. B 326, and Matter of Brown Shipbuilding Company, Inc., 58 N. L. R . B. 998. In these cases, as here, the Company mistakenly relied upon Matter of Brown & Root , Inc , 51 N L R B 820 , and incorrectly ascribed our determination in the latter case to the asserted fact that the employer was an agent of the United States Government 4 See Timberlake v Day & Zimmerman, 49 F. Supp 28. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the American Federation of Labor, 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 certain of its employees until the Union has been certified by the Board in an appropriate unit. A statement of a Field Examiner, introduced into evidence at the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate.5_ 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 to represent a unit composed of all employees in the Company's paint department, including brush and spray painters, glazers, apprentices, and trainees, but excluding all supervisory em- ployees and further excluding all employees of the Company who per- form the work of sign painting, lettering, and numbering of all facili- ties and construction in the yards, the latter group having been found to constitute a 'separate appropriate unit in a recent decision.' The only question involves the propriety of including leadermen. Although leadermen do not have the authority to hire or discharge employees, they transmit orders from the foremen to the painters. Each leaderman supervises the work of 12 or 15 employees. Occa- sionally; .they do some painting to expedite the work. In two pre- vious cases which concerned the Company,7 the Board found that leadermen in other departments in this shipyard are supervisory em- ployees: We shall exclude leadermen from the unit herein found appropriate. We find that all employees in the Company's paint department in- cluding brush and spray painters, glazers, apprentices, and trainees, but excluding employees who perform work of sign painting, letter- ing, and numbering, clerical employees, plant-protection employees, managerial employees, leadermen, and all other supervisory employees 'The Field Examiner reported that the Union submitted authorization cards, which bore the names of 256 persons , and that there are approximately 450 employees in the appropriate unit The cards were dated between December 1943 and November 1944. The Company declined to submit a copy of its pay roll O Matter of Brown Shipbuilding Company , Inc, 58 N . L It. B. 998 On November 2, 1944 , the Sign & Pictorial Painters, L Union #550, AFL, (Case No . 16-R-942 ), and the Brotherhood of Railroad Trainmen ( Case No 16-R-949 ) were certified as the bargaining representative of the employees in their respective units. 4 See footnote 3, supra. BROWN SHIPBUILDING COMPANY, INC. 199 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. 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 Elec- tion herein, subject to the limitations and additions set forth in the Direction. In accordance with the request made by the Union at the hearing, we shall designate the Union on the ballot as International Brotherhood of Painters, Decorators and Paperhangers of America, Local No. 130, A. F. of L. 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 Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Brown Shipbuild- ing Company, Inc., Houston, Texas, 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, under the direction and supervision of the Regional Director for the Sixteenth 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 Regulations, 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 employees who did not work during said pay-roll period because they were ill or on vaca- tion 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 dis- charged for cause and have not been rehired or reinstated prior to the date of -the election, to determine whether or not they desire to be represented by International Brotherhood of Painters, Decorators and Paperhangers of America, Local No. 130, A. F. of L., for the pur- poses of collective bargaining.