New York Shipbuilding Corp.

In the Matter of NEW YORK SHIPBUILDING CORPORATION and LOCAL No. 1, INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA Case No. 4.-R-1757.Decided July 13, 1946 Colonel Kenneth Gardner, H. E. Parker, and A. N. Bright, of Camden, N. J., for the Company. Mr. M. H. Goldstein, of Philadelphia, Pa., for the Union. Mr. Conrad A. Wickham, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Local No. 1, Industrial Union of Marine & Shipbuilding Workers of America, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of New York Shipbuilding Corporation, Camden, New Jersey, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Helen F. Humphrey, Trial Examiner. The hearing was held at Philadelphia, Pennsylvania, on May 21, 1946. 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 Company's motion to dismiss the petition is denied for the reasons set forth in Section III, infra. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY New York Shipbuilding Corporation, incorporated under the laws of the State of New York, operates one shipbuilding plant with main offices and yard located at Camden, New Jersey. The plant is engaged 69 N. L. R. B., No. 60. 485 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusively in the construction of vessels for the U. S. Navy. Various and numerous kinds of raw materials used in the shipbuilding indus- try such as steel, copper, brass, nickel, etc., are shipped to the Com- pany's operations in New Jersey. Although Navy security regula- tions prevent the disclosure of figures, it is admitted that the value of these raw materials for the year 1944 was quite substantial and the percentage received from outside the State considerable. The value of the naval vessels produced was in the millions of dollars, of which approximately 100 percent was outside the State. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Local No. 1, Industrial Union of Marine & Shipbuilding Workers of America, is a labor organization, admitting to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the collective bargaining representative of its subforemen. The Company contends that the subforemen here involved are a part of management, and that the Board, therefore, has no juris- diction to entertain the present petition. In substance, the Company's argument is that the subforemen are not employees within the mean- ing of the Act. This argument has been considered in a number of previous cases. The Board has found,' as have the courts,' that the definitions of "employer" and "employee" contained in the Act are not mutually exclusive; that a subforeman, for example, is an "em- ployer" when he acts in the interest of his employer, but is an "em- ployee" when he acts in his own interest, as when he seeks to better the terms and conditions of his own employment. Inasmuch as the present proceeding covers the "employee" aspect of their dual relation- ship, we find that the subforemen involved in this proceeding are em- ployees within the meaning of Section 2 (3) of the Act. We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. 1 Matter of California Packing Company, 66 N. L. R. B. 1461; Matter of Jones & Laugh- lin Steel Corporation, 66 N. L. R. B. 386; Matter of L. A. Young Spring & Wire Corpora- tion, 65 N. L. R. B. 298 ; Matter of The B. F. Goodrich Company, 65 N. L. R. B. 294 ; Matter of Packard Motor Car Company, 64 N. L. R. B. 1212, and 61 N. L. R. B. 4. IN. L. R. B. v. Armour and Co., 154 F. (2d) 570 (C. C. A. 10) ; N. L. R. B. v. Skinner & Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8). NEW YORK SHIPBUILDING CORPORATION IV. THE APPROPRIATE UNIT 487 The Union seeks a unit of all subforemen of the Company at its Camden plant. These employees include first, second and third class, and cleaner, subforemen. ' The Company has not specifically objected to the composition of the proposed unit, but relies on the proposition that the subforemen are salaried supervisors 3 possessing the usual supervisory authority to recommend the hiring, promotion, discharge, and discipline of production and maintenance employees. It also im- plies that the unit requested would be an inappropriate one for the petitioning union to represent, inasmuch as it already represents the Company's production and maintenance employees. Conceding that the subforernen here involved are supervisors, as we have pointed out in the previous section, this does not affect their status as "employees" within the meaning of the Act, and as such, they are entitled to be placed in some bargaining unit under Section 9 (b) As to the second contention, we have also previously decided that we have no power under the Act to limit the choice by supervisory employees of a collective bargaining representative to an independent unaffiliated labor organization, for the Act guarantees, equally to supervisors as well as other employees, the right to bargain collectively "through representatives of their own choosing," not of the Board's choosing.-, Accordingly, we cannot refuse to entertain the present petition merely on the grounds that it has been filed by a supervisory auxiliary of the local union which represents the Company's non- supervisory employees. The unit requested presently includes approximately 434 subfore- men divided into 4 classes on the basis of experience, ability, and re- sponsibility. They are salaried employees, receiving from $64 to $83 per week. They supervise up to 100 men, and generally are in charge of a section of a ship or shop, or of a particular type of work within a department. They have authority to recommend promotions and discharges, and constitute the lowest level of supervisory em- ployees above the rank and file. It appears that the scope of the unit of subforemen here sought directly corresponds to the already estab- lished production and maintenance unit of the rank and file employees they supervise. We are therefore of the opinion that they constitute a homogeneous group and, as such, a unit appropriate for the purposes of collective bargaining. We find that all subforemen at the Company's plant in Camden, New Jersey, including all first, second, and third class and cleaner subfore- 8 As opposed to the hourly paid working leaders, leading men and quartermen , who are presently represented by the Union as part of the production and maintenance unit. 4 See cases cited in footnote 2, supra. 6 Matter of California Packing Corporation, 66 N. L. R. B. 1461; Matter of Jones & Laughlin Steel Corporation, 66 N. L. R. B. 386. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men, constitute a unit appropriate for the purposes of collective bar- gaining 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 employees in the appropriate unit who were employed during the pay-roll period immediately 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 Relations 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 representa- tives for the purposes of collective bargaining with New York Ship- building Corporation, Camden, New Jersey, 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 Fourth 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 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 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 election, to determine whether or not they desire to be represented by Local No. 1, Industrial Union of Marine & Shipbuilding Workers of America, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting : For reasons stated in my dissenting opinions in Matter of Packard Motor Car Company,6 and Matter of Jones de Laughlin Steel Corpora- tion, Vesta-Shannopin Coal Diwisionj I am constrained to dissent from the majority opinion in this case. s 64 N. L. R. B. 1212, and 61 N. L. R. B. 4. '66 N. L. R. B. 386.