San Diego Marine Construction Co.

In the Matter of STAR & CRESCENT OIL CO., A CALIFORNIA CORPORA- TION, DOING BUSINESS AS SAN DIEGO MARINE CONSTRUCTION COM- PANY, and INTERNATIONAL ASSOCIATION OF MACHINISTS , LOCAL No. 389; SHIPWRIGHTS, BOATBUILDERS AND CAULKERS; and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL No. 569 'Cases Nos. R-25f, R-953, and R-254.-Decided October 25, 1937 Boat Building and Repairing Industry-Investigation of Representatives: controversy concerning representation of employees : refusal by employer to recognize petitioning union as exclusive representative ; threat of strike- Unit Appropriate for Collective Bargaining: craft; established labor organi- zations in plant ; eligibility for membership in petitioning union ; occupational differences-Representatives : proof of choice : membership in union ; comparison of union membership records and current pay roll-Certification of Representa- tives: upon proof of majority representation. Mr. David Sokol for the Board. Mr. Frank J. Macomber, of San Diego, Calif., for the Company. Mr. C. L. Bentley, Mr. Leroy M. Vay, and Mr. Henry Claybourne Rice, of San Diego, Calif., for International Association of Machin- ists, Local No. 389. Mr. Henry M. Smith, of San Diego, Calif., for Shipwrights, Boat- builders & Caulkers. Mr. Milton L. Ratcliff, of San Diego, Calif., for International Brotherhood of Electrical Workers, Local No. 569. Mr. Hyman A. Schulson, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On June 21, 1937, International Association of Machinists, Local No. 389, herein called the I. A. M., Shipwrights, Boatbuilders & Caulkers, herein called the Shipwrights, and International Brother- hood of Electrical Workers, Local No. 569, herein called the I. B. E. W., filed separate .petitions with the Regional Director of the National Labor Relations Board for the Twenty-first Region (Los Angeles, California), alleging that questions affecting commerce had arisen concerning the representation of certain employees of 882 DECISIONS AND ORDERS 883 San Diego Marine Construction Company,' San'Diego, California, herein called the Company, and requesting an investigation and certification of representatives pursuant to' Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 23, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Arti- cle III, Section 3 of the National Labor Relations Board Rules and Regulations-Series 1, as amended, authorized the Regional Director to conduct an investigation and to provide for' an appropriate hear- ing; and the Board further ordered, pursuant to Article III, Sec- tion 10 (e) (2) of the aforesaid Rules, and Regulations,, that the three cases be consolidated for the purposes of, hearing. The Company filed answers to the petitions admitting its refusal to recognize the three petitioning unions as the sole bargaining agents for the employees included in the units described in the peti- tions and denying that the said unions had ever been designated by the employees in the units described in the petitions as the sole and exclusive bargaining agents. The answers further alleged that the Company was not engaged in commerce as defined by the ,Act and therefore was not within the Board's jurisdiction. Pursuant to notice of hearing duly issued and served upon the parties, a hearing was held in San Diego, 'California, on August 20, 1937, before Clifford D. O'Brien, the Trial Examiner duly desig- nated by the Board. At the hearing the Board, the Company, the I. A. M., the Shipwrights, and the, I. B. E. W. were represented by counsel. , At the hearing, counsel for the parties stipulated, that the correct name of the Company was Star & Crescent Oil Co., a California corporation, doing business as San Diego Marine Construction Com- pany. On the basis of this ,stipulation the Board, of its own motion, hereby amends the pleadings to make this correction. During the hearing, the following stipulations were agreed upoT• by counsel for the parties, and were offered in evidence and, made a part of the record without objection: 1. That Board's Exhibits Nos. ' 2, 3, 7, 8, and 9 in Matter of Campbell Machine Company, David C. Campbell and George E. Campbell, Co-partners, trading as Campbell Machine Company and International Association of Machirrwists, Local No. 389, Ship- wrights, Boatbuilders d Caulkers, and International Brother- hood of Electrical Workers, Local No. 569, Crises Nos. R-249 to 251, inclusive, decided October 4, 19371 might be offered in evidence and be made part of the record `in the instant cases. 2. That the stenographic report of the testimony of C. F. 'Supra, p. 793. 884 NATIONAL LABOR RELATIONS ;BOARD Reynolds, traffic manager, of the Port of San Diego, and, of Fred Schellin, president of the Tuna Fishermen's Association, in Matter of Campbell, Machine, Company, David C. Campbell, and George E. Campbell, Co-partners, trading as, Campbell. Machine Company and, International Association of Machinists, Local No. 389, Shipwrights, Boatbuilders c Caulkers, and Interna- tional Brotherhood, of, Electrical .Workers, Local ,No. 569, Cases Nos. R-249 to 251, inclusive, decided October 4, 1937,2 might be offered, in evidence and be made part of the' record in the instant cases . , , , : , , , , Full` opportunity"to 'be heard, to examine 'and 'cross-examine wit' nesses, and to introduce evidence' bcarinb oh' the issties was afforded to all parties. Objections to the introduction of evidence ivere made during the course of the hearing by counsel for the parties. The Board' has reviewed the rulings of the Trial Exatiti'ner 'ph motions and objections and finds that no'prejudicial errors were `committed: The rulings are hereby affirmed. ' ' Upon the entire'record in the case, the Board make's the following : 'FINDINGS OF FACT I. THE COMPANY AND, ITS BUSINESS Star '& Crescent Oi'l' Co., doing , business' as San Diego ' Mairitie Construction Company,'is a 'California corporation engaged in the building and repair' of boats, principally tuna and' fishing boats, and maintains for the conduct of that business a shipbuilding and repair plant at the foot of 'Samson Street in the 'City of Sati' Diego, Cali- fornia: On •June'21, 1937, the' Company employed approxittiately 73'em- ployees, of whom 24 work in the 'machine'shop,' 33 in the boat or carpenter shop, two in the electrical department, two in the' refriger- ation department, five' in the ways department engaged in the haul- ing-'out of vessels,'two in the stockroom, four in the 'office, and one draftsman. " ' From' January 1, 1936, to July 31, 1937, the Company built and delivered-to purchasers at its plant in San 'Diego, California, eight new boats at a total price of $319,616.62, all but one of which were tuna clippers. The total price of the tuna clippers was $288, 234.35. During,the same period, the total repairs were of the value of $313,- 668.55, ,of which the sum of $200,685.79 is 'applicable 'to repairs on tuna boats. , , • .. , ' ' I , The principal, materials used by the Company in the manufacture and -repair of, boats are ; iron, steel, lumber,-,cork, rubber, machinery, 2 Supra, p. 793. DECISIONS AND ORDERS 885 metal fixtures, fittings, valves, electrical equipment, rigging and blocking, paint, brass, lead, zinc, insulating material, fire prevention equipment, and navigating outfit, etc. About eight per cent of the raw materials used in both the construction and repair of boats are transported by rail, boat, and, motor truck from points outside the State of California. - The tuna fishing, canning, and shipping industry is one of the principal industries of San Diego, California. Official statistics prepared by the Division of Fish and Game of California, Bureau of Commercial Fisheries,3 show that during the year 1936, 177,855 pounds of bluefin tuna and 126,975 pounds of yellowfin tuna were caught off the coast of California and brought to the port of San Diego, California. Even more significant are statistics from the same source showing that during the year 11936, 1,094,975 pounds of blue- fin tuna and 57,924,714 pounds of yellowfin tuna caught south of the international boundary between the United States and Mexico were brought to the port of San Diego, California. The relative im- portance of these quantities is established by comparison with the totals of 18,924,883 pounds of bluefin tuna and 76,318,752 pounds of yellowfin tuna brought into California during the same period.4 The tuna clippers built and repaired by the Company necessarily cruise beyond the three-mile limit in the ordinary course of their operations and frequently make their actual catches of fish from 1,000 to 1,500 miles offshore, and as far south as the Equator, the Cedros, McKeesy, and Galapagos Islands.5 After each voyage, aver- aging approximately 30 days, the vessels tie up at San Diego, Cali- fornia, for a week to ten days for repairs. We find that the aforesaid repairing and building operations of the Company are performed upon instrumentalities which engage in trade, traffic, transportation, and commerce among the several States and with foreign countries and on the high seas. II. THE UNIONS International Association of Machinists, Local No. 389, is a labor organization admitting to membership the machinists, machinists' helpers, and machinists' apprentices employed by the Company. It is a local of an international union affiliated with the American Federation of Labor. Shipwrights, Boatbuilders & Caulkers is a labor organization ad- mitting to membership all of the carpenters, shipwrights, boatbuild- 3 Board's Exhibit No. 2 in Matter of Campbell Machine Company, David C. Campbell and George E. Campbell, Co -partners, trading as Campbell Machine Company and Inter- national Association of Machintists, Local No. 389, Shipwrights, Boatbuilders & Caulkers, and International Brotherhood of Electrical Workers, Local No. 569, supra, p. 793. 4Ibid., Board's Exhibit No. 3. 5 Ibid., Board 's Exhibit No. 3. 49446-38-vol. in-57 886 NATIONAL LABOR RELATIONS BOARD ers, caulkers, joiners, and their helpers and apprentices, employed by, the Company. It is a local of the United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor. International Brotherhood of Electrical Workers, Local No. 569, is a labor organization admitting to membership all electrical work- ers employed by the Company. It is a local of an international union affiliated with the American Federation of Labor. III. THE QUESTION CONCERNING REPRESENTATION The I. A. M. claims to represent a majority of the machinists, machinists' helpers, and machinists' apprentices employed by the Company; the Shipwrights claim to represent a majority of the shipwrights, boatbuilders, and caulkers employed by the Company; and the I. B. E. W. claims to represent a majority of the electrical workers employed by the Company. The Company has refused to bargain collectively with the petitioning unions as sole bargaining agents for the employees in the units in which they claim to represent a majority. As a result, each of the petitioning unions has taken a. strike vote, although in the cases of the I. A. M., the international officials have forbidden the strike until the question of representation has been decided by the Board. Upon the basis of these facts we find that a question affecting com- merce has arisen concerning the representation of employees of the Company. IV. THE APPROPRIATE UNITS In its petition the I. A. M. alleged that machinists, machinists' helpers, and machinists' apprentices employed by the Company con- stitute a unit appropriate for the purposes of collective bargaining. The petition of the Shipwrights set forth that. shipwrights, boat- builders, and caulkers employed by the Company constitute a unit appropriate for purposes of collective bargaining. The petition of the I. B. E. W. alleged that all electrical workers employed by the Company constitute a unit appropriate for purposes of collective bargaining. There is no controversy raised either by the Company or by any of the petitioning unions as to the appropriate units for the purposes of collective bargaining. We will exclude supervisory, office, and stockroom employees, employees in the refrigeration and ways, de- partments, and the draftsman, as it is clear that each of these groups has functions sharply distinguished from those of the other employees. In order to insure to the 'employees of the Company the full bene- fit of their right to organization and collective. bargaining, and DECISIONS AND ORDERS 887 otherwise to effectuate the policies of the Act, we find that the fol- lowing groups of employees of the Company constitute three sepa- rate and distinct -units appropriate for the purposes of collective bargaining : (1) machinists, machinists' helpers, and machinists' apprentices; (2) shipwrights, boatbuilders, and caulkers; and' (3) electrical workers. V. THE EFFECT OF THE QUESTION OF REPRESENTATION ON COMMERCE We found above that the repairing and building operations of the Company are performed upon instrumentalities which engage in trade, traffic, transportation, and commerce among the several States and with foreign countries, and on the high, seas. The Company's employees in, each of the three units, designated above under Sec- tion IV, are this engaged in operations which constitute a necessary and integral part of such commerce; such building and repairing are essential to the regular, and effective, functioning of such instru- mentalities. 1. , , We find that the question concerning representation which has arisen, occurring in. connection with the operations of the Company, described in Section I above, has a close, intimate, and substantial relation to trade, traffic, transportation, and commerce among the several States and with foreign countries and on the high seas, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE EXCLUSIVE BARGAINING AGENCY At the hearing current pay rolls of the Company were introduced. The representatives and officers of the petitioning unions, during the hearing, testified from the membership records of their organizations. A comparison of the membership records and,the pay rolls disclosed that in each instance the petitioning union had the membership of a substantial majority, of the employees in, the unit in which it sought certification. All the electrical workers employed by the Company are members of the I. B. E. W. Twenty-seven out of the 33 em- ployees in the boat- or carpenter shop of the Company are members of the Shipwrights. Twenty-two, out • of, the 24 employees in the machine shop of the Company •are members of the I. A. M. The Company neither contended nor introduced any evidence to show that the evidence concerning the membership of the employees in the petitioning unions was in any way unreliable nor did it object thereto. Counsel for the Company claims a distinction between membership in a labor organization, and the designation and selection of such an organization as a representative for purposes of collective bargaining. 888 NATIONAL LABOR RELATIONS BOARD In reply to an identical argument advanced in a similar case, Matter of Campbell Machine Company, David C. Campbell and George E. Campbell, co-partners, trading as Campbell Machine Company and International Association of Machinists, Local No. 389, Shipwrights, Boatbuilders & Caulkers, and International Brotherhood of Electri- cal Workers, Local No. 569,6 the Board stated : Since the primary and well known function of labor organiza- tions, including the unions in the present case, is collective bar- gaining, the Board believes no such distiliction can be drawn. By voluntarily joining a labor organization an employee in effect designates that labor organization as -his representative for purposes of collective bargaining. Counsel for the Company suggested that the Company would be more willing to engage in collective bargaining with the petitioning unions in the event a formal election conducted •by the Board should result in their favor. Under the circumstances of this case no secret ballot is necessary. The' evidence is clear and uncontradicted that the employees in each of the above-described units have designated and selected the respective petitioning unions as their representatives for the purposes of collective bargaining. We therefore will certify the I. A. M. as the exclusive representative of the -machinists, machin- ists' helpers, and machinists' apprentices employed by the Company; the Shipwrights as the exclusive representative of the shipwrights, boatbuilders, and caulkers employed by the Company; and the I. B. E. W. as the exclusive representative of the electrical workers employed by the Company. CONCLUSIONS OF LAW Upon the basis of the above findings of fact, the Board makes,the following conclusions of law : 1. A question affecting commerce- has arisen concerning the repre- sentation of employees of the Company, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. , 2. The following groups of employees of the Company constitute three separate and ,distinct units appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act : (1) machinists, machinists' helpers, and machinists' apprentices; (2) shipwrights, boatbuilders, and caulkers; and (a) electrical workers. 0 Supra, p 793. DECISIONS AND ORDERS 889 CERTIFICATION OF REPRESENTATIVES 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, 49 Stat. 449, and pursuant to Article III, Section 8 of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that : 1. International Association of Machinists, Local No. 389, has been selected by a majority of the machinists, machinists' helpers, and machinists' apprentices employed by the Star & Crescent Oil Co., a California corporation, doing business as San Diego Marine Con- struction Company, as their representative for the purposes of col- lective bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, International Association of Machinists, Local No. 389, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment; 2. Shipwrights, Boatbuilders & 'Caulkers has been selected by a majority of the shipwrights, boatbuilders, and caulkers employed by the Star & Crescent Oil Co., a California corporation, doing business as San Diego Marine Construction Company, as their representative for the purposes of collective bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, Shipwrights, Boatbuilders & Caulkers is the exclusive representative of all such employees- for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment; and 3. International Brotherhood of Electrical Workers, Local No. 569, has been selected by a majority of the electrical workers employed by the Star & Crescent Oil Co., a California corporation, doing business as San Diego Marine Construction Company, as their representative for the purposes of collective bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, International Brotherhood of Electrical Workers, Local No. 569, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.