J. K. Welding Co., Inc.

In the Matter of J. K . WELDING COMPANY, INC. and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA , LOCAL 22, C.C.I.O. Case No. R-5544.-Decided July 14, 1943 Mr. Abraham Eisenstat, of New York City, for the Company. Mr. Max Delson, of New York City, for the Union. Mr. David V. Easton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Industrial Union of Marine & Shipbuild- ing Workers of America, Local 22, C. I. O:, herein called the Union, alleging that a question affecting commerce had. arisen concerning the representation of employees of J. K. Welding Company, Inc., Brook- lyn, New York, herein called the Company, the National Labor Rela- tions Board provided for an appropriate hearing upon due notice before John J. Cuneo, Trial Examiner. Said hearing was held at New York City on June 17, 1943. The Company and the Union ap- peared,' participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. 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 I. THE BUSINESS OF THE COMPANY J. K. Welding Company, Inc., a New York corporation, is engaged in the manufacture of barges, tugs, and other vessels, as well as general welding work. • For this purpose it maintains a plant in Brooklyn, 1 International Association of Bridge, Structural and Ornamental Iron Workers, Local 561, A. F. L., although duly notified of this proceeding , entered no appearance . It did, however, have an unofficial observer at the hearing who took no part in the proceeding. 51 N. L. R. B., No. 68. 328 J. B. WELDING COMPANY, INC. 329 New York, with which we are concerned herein. Between June 1, 1942, and June 1, 1943, the Company purchased raw materials valued in excess of $100,000, of which approximately 75 percent was shipped to it from points outside the State of New York. During the same period the Company manufactured and produced finished products valued in excess of $150,000, which was delivered at the Company's shipyard to the United States Navy and to the United States Army. The Company admits that it is engaged in commerce within the mean- ing of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Industrial Union of Marine & Shipbuilding Workers of America, Local 22, is a labor organization affiliated with the Congress of Indus- trial Organizations, admitting to membership employees of the Com- pany. III. THE QUESTION CONCERNING REPRESENTATION On or about March 18, 1943, the Union addressed a letter to the Company requesting a bargaining conference. The Company made no response thereto. Thereafter, on April 27, 1943, at a conference held at the Regional Office of the Board, the Company refused to bargain with the Union until such time as the Union was certified as the bargaining representative. A statement of the Regional Director, introduced into evidence at the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate.2 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 contends that a unit comprised of production and main- tenance employees engaged in shipbuilding, stock clerks, assistants to the departmental foremen, and chauffeurs, but excluding the super- intendent, general foreman, working and departmental foremen,-' timekeepers, watchmen, and guards, and all employees working less • than 50 percent of their time in the shipyard, constitutes an appro- priate unit. Tle Company contends that all employees of the Com- pany, with the exception of the Superintendent, who alone has the power to hire and discharge, should be included within the unit. 2 The Regional Director reported that the union submitted 187 application cards, 138 of which bore the names of persons appearing upon the Company' s pay roll of March 24, 1948; all of the signatures affixed to these 138 cards appeared to be genuine and original. He further reported that there are approximately 227 employees in the appropriate unit. 5 "Departmental" and "working" are used synonymously herein. 4 '330 DECISIONS ' O'F NATIONAL LABOR RELAfIONS BOARD General and departmental foremen.-The general foreman and de- partmental foremen devote at least half of their time to supervision and the laying out of work. The majority of them perform some -manual work in varying degrees in addition to their supervisory duties. Although they have no power to hire or discharge, they do ,have the power to recommend such action. Each supervises from 4 to 30 employees, depending upon the operation involved. They re- port upon the quality and performance of the work produced by these employees, as well as any requests for raises and promotions. They receive higher salaries than the employees working under them. Al- though the Company seeks to include working and departmental foremen, within the unit, we are of the opinion that the duties of these employees are sufficiently supervisory in nature so as to warrant their exclusion from the unit hereinafter found appropriate. We shall therefore exclude them. Assistants to departmental foremen.-There are certain employees in the various departments who act as assistants to the departmental foremen and report to them. Most of their time is devoted to actual production work. However, they receive a. higher wage than the other employees, and they report upon the quality of the work of these employees as well as make recommendations regarding them to the departmental foremen. Although both the Union and the Company agree that these employees should be included within the appropriate unit, we are of the opinion, and find, that they possess power to effect changes in the status of the employees whom they supervise, and we shall therefore exclude them. Watchmen and guards.-These employees are deputized as auxiliary police of the United States Coast Guard, and carry arms. They per- form the customary duties of watchmen and guards. Although the Company desires to include them within the unit, we are of the opinion that the interests of these employees are not akin to those of pro- duction and maintenance employees, and we shall, in accordance with our usual practice, exclude them. Timekeepers.-These employees compute and report the working time of the employees, and, together with the superintendent, inter= view newly hired employees. Their work is essentially clerical in nature. In view of these circumstances, we shall exclude them from the unit. Outside production employees.-The Company employs a group, consisting of 50 or more welders, who devote most of their time to the performance of work outside the regular premises of the Company. Most of them have no contact with the employees working in the yard, and they are hired at the site of their employment; however, a small minority are permanent employees of the Company, but their J. K. WELDING COMPANY, INC. 331 duties are primarily supervisory. We shall exclude all employees performing the major part of their work outside of the company premises. In accordance with the foregoing, we find that all production and maintenance employees of the Company engaged in shipbuilding, including stock clerks and chauffeurs, but excluding the superinter d- ent, general foremen, departmental foremen, assistants to depart- mental foremen, timekeepers, watchmen, and guards and all em- ployees working the major part of their time outside of the ship- yard as well as all 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 appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The Union de- sires that the pay roll of the Company covering the week prior to June 17, 1943 (the date of the hearing herein), be used to determine eligibility to vote, inasmuch as the Company contemplated an increase in personnel of approximately 10 percent. We do not regard this circumstance as sufficient to warrant a departure from our usual policy. Accordingly, we shall direct an election among those employees of the Company 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 Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with J. K. Welding Company, Inc., Brooklyn, New York, 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 Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the em- ployees in the unit found appropriate in Section IV, above, who i '332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Industrial Union of Marine & Shipbuilding Workers of America, Local 22, affiliated with the Congress of Industrial Organizations, for the purposes of col- lective bargaining.