Martinolich Shipbuilding Co.

MARTINOLICH SHIPBUILDING CO. 179 office clerical and factory groups as to warrant departure from our usual rule of excluding office clerical employees from a production and maintenance unit. Nor will we "accord con- clusive weight to a [bargaining] history which is repugnant to established Board policy respecting the composition and scope of bargaining units."6 Accordingly, we shall exclude office clerical employees from the unit, but include plant clerical employees. 7 We shall follow our normal policy of excluding technical employees from a production and maintenance unit, where one of the parties objects to their inclusion.' We find that all production and maintenance employees at the Employer's Hawthorne, California, plant, including fabri- cation, assembly, tooling, stores, warehouse, service shipping and receiving employees, truckdrivers, and plant clerical em- ployees, but excluding office clerical, technical, and profes- sional employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Member Beeson took no part in the consideration of the above Decision and Direction of Election. 6General Electric Company (River Works), supra, page 4. 7 The Employer's classification system divides the employees into two groups- -production and maintenance and office and technical. The job descriptions indicate that some of the office and technical classifications, for example, material control man, production planning clerk, and dispatcher, production planning, are actually plant clerical, rather than office clerical, jobs. Such classifications are included in the unit. In listing the above examples we do not mean to exclude other job classifications which also fall within the plant clerical category as that term is used by the Board. Whiting Corporation 107 NLRB 493. 8 Swift & Company, 98 NLRB 746, at 747. MARTINOLICH SHIPBUILDING CO. land LOCAL UNION 230, UNITED ASSOCIATION OF JOURNEYMEN AND APPREN- TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL, Petitioner. Case No. 21-RC-3436. April 8, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Norman H. 'This case was originally consolidated with Cases Nos. 21-RC-3434 and2l-RC-3435 (Harbor Boat & Yacht Co.), and Case No 21-RC-3437 (National Steel & Shipbuilding Corp.). During the course of the hearing the Petitioner moved to withdraw the petitions in these cases. The hearing officer referred the motion to the Regional Director who approved the withdrawals without prejudice. 108 NLRB No. 45. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upcn the entire record' in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent em- ployees of the Employer. 3. No question affecting commerce exists concerning the rep- resentation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks to represent a unit limited to certain employees of the Employer. The Employer and International Association of Machinists, herein called the Intervenor, contend that a unit so limited is inappropriate because of the long bargaining history of the multiemployer group , of which the Employer is an integral part. The Employer is one of a number of employers engaged in building and repairing ships in the . San Diego, California, area. For at least 6 or 7 years the employees of these shipbuilders have been represented by various craft unions and the Intervenor. Customarily, each year, these unions jointly con- centrated their initial bargaining efforts on , and secured, separate contracts from the Employer. Then, all the unions and the San Diego Employer's Association,' herein called the Association, representing all the shipyards in the San Diego area except the Employer, would bargain on an industrywide basis . These negotiations resulted in the execution of a basic agreement establishing uniformterms and conditions of employ- ment for the employees of all shipbuilders in the San Diego area . Each shipbuilder thereafter adopted these terms and con- ditions of the industry agreement by executing separate but identical contracts with the individual unions." The Employer considered its contracts with the unions as interim agreements executed in order to keep its shipyard in operation until the Association and the unions concluded their areawide industry agreement . Thereafter, the Employer always amended its contracts to conform to the industrywide agreement. On September 24, 1953, the Intervenor notified the Employer of its desire to amend the then current contract covering the employees involved herein.5 In reply thereto, the Employer by 2 The Intervenor, in its brief, requested correction of the transcript of evidence taken at the hearing. No objections were filed to the request. The request is hereby granted and the record is corrected accordingly. 3 The Association is composed of approximately 300 member firms representing a cross section of every type of industry in the area. 4 The only difference in these contracts was an added appendix covering classificatons of employees and rates of pay applicable to the individual employer involved. 5 In accordance with the terms of the contract, this notice effectively prevented automatic renewal. Accordingly, this contract which expired December 1, 1953, cannot be a bar to this proceeding. MARTINOLICH SHIPBUILDING CO 181 letter of October 25 stated that in the past it had been put on the "spot" during industry negotiations; that it now refused to continue to be used as a "whipping post"; and that it would neither authorize the Association to act for it nor negotiate a contract separately with the unions. However, the Employer further stated that "whatever results or negotiations are ar- rived at [by] the shipbuilding group and the unions will be satisfactory to this company." Thereafter, in response to a request by the Intervenor for continuous negotiations, the Employer, by letter of December 4, replied that "I understand that as of the date of this letter that negotiations can be opened through the Shipyard Committee." Subsequently, a representa- tive of the Employer attended and participated in at least five bargaining sessions with the Association and the unions. As a result of these negotiations, the Employer, Association, and unions, on January 5, 1954, signed a memorandum agreement setting forth certain specific terms and conditions of employ- ment, and providing that the completed industrywide agreement would be reduced to writing as soon as possible and would be signed by each union and employer. We agree with the Petitioner that employer inclusion in a multiemployer unit is based upon employer intent and that generally such intent is evidenced by participation in group bargaining.' However, intent is a question of fact to be deter- mined from the particular circumstances of each case. T Although until recently the Employer had not formally partic - ipated in joint bargaining negotiations between the Association and the unions, we believe under all the circumstances that it had intended to be, and for allpractical purposes always has been, part and parcel of the overall pattern of multiemployer bargaining in the San Diego area. We note particularly that the Employer in the past was customarily used to initiate bar- gaining for the shipbuilding industry in the San Diego area; and that it therefore considered its contracts with the Intervenor as interim agreements to be modified and amended to conform to the subsequent industrywide agreements. Further we note that, before the petition herein was filed, the Employer unequiv- ocally indicated its intention to be bound in collective bargain- ing by group, rather than individual, action; that it subsequently participated in group negotiations with the Association and signed the resulting industry memorandum agreement; and that 6York Transfer & Storage Co., 107 NLRB 139 at page 4. 7 Pacific Metals Company, Ltd., 91 NLRB 696 at 699. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the hearing , the Employer reiterated its position that it was a part of the multiemployer group. Accordingly , as the unit sought by the Petitioner is too limited in scope and therefore inappropriate , we shall dismiss the petition.8 [The Board dismissed the petition.] Member Beeson took no part in the consideration of the above Decision and Order. 8See Des Moines Packing Company, 106 NLRB 206; Atlas Storage Division, P &. W Atlas Industrial Center, Inc., 100 NLRB 1443 at 1444; and Associated Shoe Industries of Southeastern Massachusetts, Inc., etal., 81 NLRB 224 at 229. BILLBOARD PUBLISHING COMPANY and AMALGAMATED LITHOGRAPHERS OF AMERICA, LOCAL NO. 8, CIO, Petitioner . Case No . 9-RC-2130. April 8, 1954 ORDER DENYING MOTION FOR RECONSIDERATION On February 12, 1954 , the Board issued an unpublished Decision and Order in the above - entitled proceeding , and there- after on March 3, 1954 , the Petitioner filed a motion for reconsideration of the said Decision. The original petition was dismissed on the ground that the requested unit of offset pressmen did not meet the Board's minimum requirement of at least two employees . The Petitioner states, in its motion , that the unit now consists of two full- time offset employees and therefore requests that the Board find the requested unit appropriate. Because in the original Decision the Board found the unit inappropriate , it found it unnecessary to resolve the contract- bar issue raised by the Intervenor ( Cincinnati Printing Press- men and Assistants ' Union No. 11 ). However, we find it unnec- essary to reconsider the issue now raised concerning the appropriateness of the unit , as we hereafter find that the Intervenor ' s contract with the Employer is a bar to the pro- ceeding. As bearing on the issue of contract bar, the evidence dis- closes that it has been the practice for the Intervenor to nego- tiate collective-bargaining agreements with the Cincinnati Printers League, an employer association , and thereafter to secure the same terms and conditions from individual non- members such as the Employer . Following the execution of the agreement between the League and the Intervenor on,April 7, 1950, the Employer signed a written instrument , to which a copy of the League agreement was attached , stating that the 108 NLRB No. 44.