Tampa Shipbuilding Co., Inc.

In the Matter of TAMPA SHIPBUILDING COMPANY, INCORPORATED and GUARDS, WATCHMEN AND FIREFIGHTERS LOCAL UNION No. 22970 A. F. of L. Case No. 10-R-1279.-Decided June 27, 1945 Mr. Paul S. Kuelthau, for the Board. Reeves, Allen & Johnson, by Mr. LeRoy Allen, of Tampa, Fla., for the Company. Mr. Al Kent, of Miami, Fla., for the Union. Mr. Bernard Goldberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Guards, Watchmen and Firefighters Local Union No. 22970, A. F. of L., herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Tampa Shipbuilding Company, Incorporated, Tampa, Florida, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Charles W. Schneider, Trial Examiner. Said hearing was held at Tampa, Florida, on ,larch 8 and 9, 1945. 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. At the hearing, the Company moved to dismiss the petition on the grounds that the guards are not employees of the Company and that a unit of such guards is inap- propriate. For reasons stated hereinafter, the said motion is hereby denied The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following 62 N L. R. B ., No. 121. 954 TAMPA SHIPBUILDING COMPANY, INCORPORATED 955 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Tampa Shipbuilding Company, Incorporated, is a Florida corporation engaged at its shipyard in Tampa, Florida, in the construction, conversion. and repair of ships for the United States Navy, the War Shipping Adnlims- tration, and the Lend Lease Administration During any year the Com- pany uses raw materials valued at more than $2,000,000, of which 80 per- cent originates outside the -State of Florida. During a similar period the Company's receipts from its operations exceed $10,000,000. We find that the Company is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Guards, Watchmen and Firefighters Local Union No. 22970, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company. 111. "THE- QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the Union as the bargaining representative of the guards on the ground that they are not employees of the Company. A statement of a Board agent, introduced into evidence at the hearing. indicates that the Union represented a substantial number of employees in the unit hereinafter found appropriate at the time of filing of the petition' 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 'A Field Attorney reported on October 26, 1944, that the Union submitted 147 authorization cards, that, of these cards, 119 bore the names of persons listed on the Company's pay roll of August 19, 1944, containing the names of 264 employees in the appiopriate unit; and that 114 of the 119 cards so identified were dated between June and August 1944, while the iemaining 5 were undated The Union filed its petition with the Board on August 19, 1944 Through no fault of the Union and as the result, in part, of injunction proceedings initiated by the Attorney General for the State of Florida, the hearing was delayed until March 8, 1945 Meanwhile, as the result of heavy turn- over in company guard personnel, the Union has admittedly lost almost all of its representation among the guards At the hearing, the Trial Examiner admitted into evidence, over the Company's objection, the Field Attorney's "Report of Investigation of Interest of Contending Labor Organiza- tion," and rejected a current pay-roll list offered in evidence by the Company foi the purpose of checking the Union's present interest among the guaids The Conipany questions the coirectness of the Trial Examiner's rulings and attacks the sufficiency of the Union's showing We find that ur Trial Examiner's rulings were proper and that the showing satisfies the Board's administi.1tive requirements. We have stated repeatedly that authorization cards are not requited to be submitted to the Board as the basis for a finding for or against any party to the pioceedmg but as prima facie evidence that the Union at the time of filing of the petition has sufficient interest to justify the Board in initiating its investigatory machinery Since the evidence submitted is foi the sole purpose of aiding the Board in making an administrative determination, any questioning of such eviclent;al showing by an opposing party is not permitted Matter of Sat,cet Motor Lives, 59 N L. R B 1434 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EMPLOYER WITHIN THE MEANING OF SECTION 2 (2) OF THE ACT; THE EMPLOYEES WITHIN THE MEANING OF SECTION 2 (3) OF TILE ACT Up to September 1941, the Company employed as guards or watchmen physically handicapped individuals, many of them employees injured on the job and not qualified for ship construction work. In September 1941, allegedly at, the insistence of United State Navy officials that an armed guard be furnished, the Company entered into a contract with the sheriff of Hillsborough County, Florida, providing for the latter to undertake the duties of guarding and policing the Company's premises. This arrangement with the sheriff continued until August 22, 1942, when the guards were enrolled in the United States Coast Guard Reserve and placed under the command of a Coast Guard officer' They remained in Coast Guard until dlsenrolled on June 30, 1944. A short time prior to the dlsenrollment, the Company requested the sheriff of Hillsborough County to render guard service pursuant to Chapter 21798, Laws of Florida 1943' This the sheriff undertook to do in the manner prescribed in the statute. 2Tn.Matte, of Tardpa Shipbuilding Company, Incopoated, 50 N L R B 177, in unfaii labor practice proceeding , the Board found , hitter aria, that the Company entered into the September 1941 contract with the sheriff for the purpose of discouraging the guards from joining or iemaming members of the Union and that the Company was the employer of the guaids during the period of their enrollment in the Coast Guard The Board, however , expiessiy reserved the question as to whether the Company was the employer of the guards di n ing the period when it was under contract with the sheriff 3 The pertinent provisions of this statute are as follows- AN ACT Authorizing and/Empoweimg the Sheiiffs of the Various Counties of This State to Furnish Guaid Service Against Sabotage, Providing That Such Guards Shall Be Deputy Sheriffs, Defining Industry and Setting Out the Terms of Employment of Such Guards, Their Duties, Scale of Pay and Other Conditions of Employment , and Providing That Such Indus- tries Reimburse Said Sheriffs for the Actual Expense of Such Guard Service, and Ratifying and Confirming the Furnishing of Such Guai d Service Heretofore Furnished by Sheriffs of This State to Industry WHEREAS, the United States Government is now engaged in wai with the Axis nations, and WHEREAS, many industries in the State of Florida are engaged in furnishing to the United States Government ' s war effort vital wai mate,ials , and otherwise helping said Gov- einment in its war effort, and WHEREAS , there is danger that such vital industries , unless properly guarded by experi. enced law enforcement officers, might be crippled (sic) by acts of sabotage, thus frustiatmg the prosecution of said war, and WHEREAS , the sheriffs of the respective counties in this State , if called upon , should furnish guard service in order to piotect such industries NOW, THEREFORE, BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF FLORIDA Section 1 That the sheiiffs of the respective counties of the State of Florida be and they are hereby authorized and empowered to furnish adequate guard service to vital war industries if requested so to do by such industries , provided such industries reimburse said sheriffs the actual cost of such guard service , that the furnishing of guard service by said sheriffs to vital war industries is and shall be an official act of the various she,ifts and said guards shall be deemed to be in the employ of the various sheriffs as an instrumentality of the State of Florida Section 2 That such guards shall be regular or special deputy sheriffs, residents of the State of Florida and citizens of the United States, and bonded , with no prior criminal record, and shall be always tinder the control of the respective sheriff who employs said guard , that all orders to said guard shall emanate from the respective sheriffs, provided, however , that industry shall have the iight to supervise said guard or quaids and make recommeudatioiis in connection with the guarding of its piope,ty to said sheriff. Section 3 The term " industry " as used in this Act shall he construed to include any pen son, TAMPA SHIPBUILDING COMPANY, INCORPORATED 957 The Company contends that the guards, as deputy sheriffs, are employ- ees of the sheriff of Hillsborough County, Florida, and hence are not within the coverage of the Act. It apparently argues that, since the guards are employees of the sheriff by express provision of the State statute, they can- not simultaneously be employees of the Company. Significantly, however, the Florida statute does not purport to declare that the guards are no longer to be considered employees of the Company. Indeed, although the statute explicitly makes the deputized guards employees of the sheriff, other pro- visions of the same statute obviously envisage a continuing degree of con- trol over such guards to be exercised by the company whose premises are being guarded. Thus 'Section 2 of the same law, while stating that the depu- tized guards shall be under the control of the sheriff and that all orders shall emanate from the latter, contains the proviso that the "industry shall have the right to supervise said guard or guards and make recommenda- tions in connection with the guarding of its property to said sheriff." Sec- tion 4 further provides that the guards employed by the sheriff "shall be acceptable to the particular industry involved at all times and shall receive such pay as is agreeable to the sheriff, industry, and the guard to be em- ployed." Clearly, just as the control over the labor relations of a given group of employees may be shared by two private principals,` so it may be shared by a governmental agency and a private individual or company, as the statute in the instant case apparently contemplates The fact that Sec- tion 2 (2) of the Act' excludes a political subdivision of a State from the definition of "employer" cannot, as the Company inferentially argues, re- move from the scope of the Act the private company which shares with the political subdivision control over the labor relations of the worker involved, nor does it exclude the worker from the definition of "employee" as used in Section 2 (3) of the Act.' The single question to be resolved then is not, as contended by the Company, whether the guards became the employee, of the sheriff on July 1, 1944, but whether the relationship of the guards to the Company since that date has continued to be that of employees within the meaning of the Act. In determining the relationship of the deputized guards to.the Company, flini of corporation engaged diiectly oi mduectly in the manufacture or fuinishuig of an, materials , equipment , commodities or services which contribute to the prosecution of the war effort Section 4 That the said guards employed by the vat ions sheriffs bet evader shall be acceptable to the particular industry involved at all tines and shall ieceve such pay as is agreeable to the sheriff, indnstu r, and the guard to be employed ( Underlincation supplied ) See Butler Brothers v N L R B , 134 F (2d) 981 (C C A 7 ), cent denied 320 Li S 739, A' L R B v Condenser Corporation of America , 128 F (2d ) 67, 72 (C C A 3) 5 Section 2 (2) defines an "employer " as "any person acting in the interest of an employer, directly or indirectly, but shall not include the United States, of any State or political subdivision thereof . . Section 2 (3) provides that "The term `employee' shall include any employee but shall not include any individual employed as an agricultural laborer , or in the domestic service of any firmly or person at his home , or any individual employed by his parent or spouse " )58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board must look beyond the surface arrangements which have been made by the Company and the sheriff to the underlying factual situation actually governing the labor relations of the guards. The circumstances which both preceded and followed the transfer of the guards to the pur- ported control of the sheriff must be considered! While enrolled in the,Coast Guard, the guards were employees of the Company e As the result of the Company's request made shortly prior to the disenrollment of the guards from the Coast Guard, the sheriff under- took, pursuant to Chapter 21798, Laws of Florida 1943, to furnish ade- quate guard service to the Company's shipyard commencing July 1, 1944. To render the required service the sheriff, following the provisions of the statute, made all the former company guards, except those with criminal records, special deputy sheriffs entrusted with the single task of continuing their guard duties at the Company's, shipyard. The Sheriff in deputizing the guards was emphatic about the continuing important role to be accorded the Company under the statutory arrange- ment. In a written statement° read to the guards at the swearing-in cere- monies, the sheriff's attorney stressed the fact that applications for guard positions would have to be made to the Company, that no guard would be employed except upon prior written recommendation of the Company, that any investigation to be made by the sheriff of an applicant for a guard position would largely consist of Federal Bureau of Investigation finger- print reports, and that the rate of pay was to remain the same. The sheriff's attorney also emphasized that the guard deputies were to have no authority as deputies except when functioning as guards on company property. A few days before the deputization of the guards, a high official of the Company assured them that, although they were to go under the sheriff, no changes would be made and things would continue as theretofore. The record amply establishes the accuracy of this prediction. The guards were deputized en masse except for a small number who had criminal records and thus were diqualified by statute to receive commissions. The most important change was in the appointment of a new captain to succeed the Coast Guard officer who, with disenrollinent of the guards, was transferred to other duties. The new captain was a long-time member of the guard force and one of those second in command to his predecessor." The sheriff made no change in the duties, wages, hours, or working conditions of the guards. The training program and procedures of the guard force were carried over intact. The sheriff has never intervened with instructions as ° Butler Brothers v N L. R B , supra $ Matter of Tampa Shipbuilding Company, Incorporated, supra ° Board's Exhibit No 6 10 The Company 's role, if any, in secui ing the appointment of the new captain, V B. Calks, is not clear. It should be noted, however , that the new captain was found by the Board in Matter of Tampa Shipbuilding Company, Incorporated , supra, to have participated , together with other officers, in thwarting earlier organizational activities of the guards TAMPA SHIPBUILDING COMPANY, INCORPORATED 959 to the details of the work performed by the guard force. He has made no regular inspections of the guards at the yard; in almost 9 months he has been at the shipyard not more than six times. The guards not only have continued to guard company and Naval property, but have also, without interruption, continued to enforce rules formulated and issued by the Com- pany respecting the conduct of employees while on duty at the shipyard In no important degree has the functioning of the guard force been altered by the new arrangement. As before deputization, the Company's plant de- fense coordinator has continued to transmit instructions and requests for guard service to the captain of the guards and, despite the Company's contention to the cotnrary, it clearly appears that such instructions or requests are in reality orders and are treated as such both by the captain and the guards. The deputized guards have retained the same headquarters at the ship- yard and have continued to wear the same khaki uniform they wore prior to their deputization, only replacing the Coast Guard insignia with tabs bearing the legend "Tasco Police" and adding a deptity sheriff's badge while on duty. They still utilize the arms formerly furnished by the United States Navy. They punch the same company time clocks used by yard employee,, and their time is checked by company timekeepers who make their report to the Company's pay-roll department. This company department calculates the amount due each guard, deducts the necessary withholding taxes and bond authorizations, prepares the individual checks for each guard, and then sends such checks to the sheriff for signature. The checks are sheriff's checks drawn against a special guard pay-roll account, funds for which are supplied by the Company The checks signed by the sheriff or his deputy are then returned to the shipyard where they are distributed to the guards in the squad room. The mode of payment and the pay periods for guards are iden- tical with those of undisputed company employees, non-supervisory guards who are hourly paid receiving their checks weekly, and supervisory guards who are salaried being paid semi-monthly. At the present time, applicants for guard positions fill out regular coin- pany application forms;` they are initially interviewed by the captain of the guards or one of his subordinates, are then given a physical examination by a company physician, and are fingerprinted by a company employee If an applicant is lured by the captain of the guards, the Company's pay-roll and timekeeping departments are notified. The fingerprints are sent to the sheriff for a check with the files of the Federal Bureau of Investigation. The sheriff's participation in the hiring of new guards does not seem to extend beyond the formal Federal Bureau of Investigation check on fingerprints The procedure for the discharge of guards also follows that applicable to n The application blanks, however, are stamped with the notation "Sheriff's Employcc" m the upper right hand corner 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted employees of the Company. The captain generally discharges guards without prior consultation with the sheriff , the latter has, however, ordered the discharge of about three guards with criminal records and two guards who were arrested for disorderly conduct while off duty, but he has never recommended the discharge of any guard for acts committed in the shipyard. Copies of the termination report are sent to both the Company and the sheriff. A discharged guard is given a company discharge slip signed by both the captain of the guards and the Company's plant defense coordinator; he is interviewed by one of the Company's exit interviewers; and he is given his release, when entitled to it, by the Company's personnel department 12 The Company's workmen's compensation policy includes with- in its coverage the deputized guards; the Company also pays the premiums on the bonds which the guards are required to furnish as special deputy sheriffs. One important change in the condition of the guard has, however, occurred as the result of their deputization. Social security taxes are no longer required to be paid on the earnings of the guards following a ruling of the Commissioner of Internal Revenuer' that the services performed bj• the deputy sheriffs in guarding the property of the Company are excepted from "employment" by reason of the provisions of paragraph (7) of Sec- tions 1426 (b) and 1607 (c) of the Federal Insurance Contributions Act and the Federal Unemployment Tax Act, respectively 14 The Company relies heavily on this ruling and on a decision of the Florida Unemployment Com- pensation Board of Review rendered on April 1, 1943," with one of the three members dissenting, that the deputized guards under the Company's 1941 contractual arrangement with the sheriff of Hillsborough County were not in covered employment. The decisions referred to by the Company are not determinative of the meaning of either the term "employer" or "em- ployee" as used in the Act. "The Wagner Act is federal legislation, admin- istered by a national agency, intended to solve a national problem on a national scale."10 There is nothing in the Act's history or background to indicate that its scope is to be limited by administrative constructions, State or Federal, of other statutes. The National Labor Relations Act must be construed in the light of its own history and the purposes it was intended to 11 One of the discharged guards, F T Thomas, testified that after receiving his termination notice from the Company lie asked for his release and was told that the shei if and not the Company granted such releases to the guards He testified further that an official of the sheriff's office, when requested to furnish such a release, answered "I hadn 't never hcaid anything about it This is the first I know of it " According to the witness, the sheriff himself said that he did not issue any releases, and that they would have to be obtained at the yard 13 Company Exhibit No 3 14 The opinion of the acting deputy commissioner is based entli ely on the Florida statute adverted to above and the information furnished by the Company It does not appeal that the commissioner, in reaching his decision , had before hint evidence as comprehensive as that adduced at this hearing 15 Company's Exhibit No 2 16 AT L R B v Hearst Publications, Incorpo,atcd, 322 U S 111, 123. TAMPA SHIPBUILDING COMPANY, INCORPORATED 961 fulfill." We are satisfied that, whatever his powers, the sheriff, who is not compensated 'for the additional burden placed upon him by the statute, has elected to exercise only nominal control over the deputized guards and that the real control over the terms, conditions of employment, and the activities of the guards has remained with the Company 18 In view of the foregoing, we find that the Company is an "employer" of the deputized guards within the meaning of Section 2 (2) of the Act and we further find that the guards are employees of the Company within the meaning of Section 2 (3) of the Act."' As already indicated the sheriff is excluded from the definition of the term "employer" as defined in Section 2 (2) of the Act since he is a gov- ernmental agent. In making the finding hereinafter as to the appropriate unit, the Board intends neither to encroach upon the prerogatives of the sheriff nor to redefine the relationship which exists between the sheriff and the guards. In the event that the Union wins the election ordered herein, the certification of it as the collective bargaining representative will be lim- ited to those aspects of the labor relations of the guards which, the evidence indicates, are within the control of the Company. V. THE APPROPRIATE UNIT The Union seeks a unit of guards, excluding corporals, sergeants, lieu- tenants, and the captain. The Company, while taking no position relative to the Union's desired exclusions, contends that the guards should not be included in any collective bargaining unit because they are engaged in pro- tecting a vital war industry. To support its position, the Company relies on the decision of the United States Circuit Court of Appeals for the Sixth Circuit in the Jones and Laughlin case and on the decision of the United States Circuit Court of Appeals for the Seventh Circuit in the E. C. Atkins Contpany'° case, in which units of militarized guards were held inappropri- ate. We do not acquiesce in those decisions. Moreover, those decisions in- volved militarized and not deputized guards, such as are the subject matter 11 See N L R B v Hearst Publications, Incorporated, sepia, N L R B v R A Blount, 131 F (2d) 585. 590 (C C A 8) ; Noi th Whittier Heights Citrus Association v N L R B , 109 F (2d) 76, 79 (C C A 9), Matter of I'epeekeo Sugar Company, 59 N L R B 1532 18 The sheriff has apparently kept his regular deputies and the special deputies whose activities are confined to the Company's shipyaid in carefully separated compartments One former special deputy testified that on one occasion a regular deputy who entered the yard to make an arrest was deprived of his fireai ms at the shipyard gate by one of the special deputies 1P See N L. R B v Hearst Publications, Incorporated, 322 U S 111, Butler Biotlie,a v N L R B, 134 F (2d) 981 (C C A 7), ccrt denied 320 U S 789, N L R B v Condenser Corpora- tion of Amciica 128 F (2d) 67 (C C A 3), N L R B v Grower-Shipper Vegetable Association, 122 F (2d) 368 (C C A 9) _0 N L R B v Jones and Laughlin Steel Corp, 146 F (2d) 718 (C C A 6), N L R B v E C Atkins and Company ,147 F (2d) 730 (C C A 7) On June 4, 1945, the Supreme Count of the United States granted the Board's petition for writs of ceitioiari in these cases, vacated the judgments, and remanded the cases to the respective Circuit Court of Appeals foi further recon- sideration of the alleged changed circumstances with respect to the demilitarization of the employ- ees involved 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the present proceeding. The status of deputized and militarized guards engaged in protecting vital war industries has recently been' thorougly re- examined by the Board in view of the above-cited decisions relied on by the Company. After such reexamination, we reiterated our earlier conclusions that there is no incompatibility between union membership and honest, faith- ful performance of duty by deputized or militarized guards, and that the public interest will be furthered and the national defense strengthened not by denying such employees all opportunity to bargain collectively concern- ing the terms and conditions of their employment, but by creating separate bargaining units limited to such employees.` Accordingly, we find that the fact that the deputized guards are engaged in protecting a vital war industry has not affected their status as employees under the Act, nor has it affected their right, as such, to collective bargaining. As stated above, the Union urges the exclusion of corporals, sergeants, lieutenants, and the captain, all of whom appear to have supervisory author- ity within the Board's definition; we shall exclude them. We find that all guards, excluding corporals, sergeants, lieutenants, the captain, and all other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. VI. 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 employees in the appropriate unit who were employed during the pay-roll period immedi- ately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Re- lations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby. DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with Tampa Shipbuilding Com- pany, Incorporated, Tampa, Florida, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the 2' Matter of Bethlehem -Fairfield Shipyard, Inc , 61 N L. R B 901; Matter of International Harvester Company, Mawaukee Works, 61 N L R. B 912; Matter of Aluminum Company of America, 61 N L R. B. 1066 ; Matter of Bethlehem Steel Company, 61 N L R B 892, Matter of Dravo Corporation, 52 N. L R B 322. TA-NI PA S I I 1I'I t U.I)INC COM PAN 1 I NCURPUNA TEI) 963) date of this Direction, under the direction and supervision of the Regional Director for the Tenth Region, acting in this matter as agent for the Na- tional 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 V, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employ- ees 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 and have not been rehired or reinstated prior to the date of the elec- tion, to determine whether or not they desire to be represented by Guards, Watchmen and Firefighters Local Union No. 22970, A. F. of L., for the purposes' of collective bargaining.