Bethlehem-Fairfield Shipyard, Inc.

In the Matter of BETHLEHEM-FAIRFIELD SHIPYARD , INCORPORATED and LOCAL 43, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA In the Matter of BETHLEHEM-FAIRFIELD SHIPYARD, INCORPORATED and LOCAL 43, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA-C. I. O. Cases Nos. 8-5531 and R-5532 respectively. Decided July 20, 1943, Cravath, de Gersdorff, Swaine & Wood, by Messrs. C. A. McLain and E. E. Buchanan, of New York City, for the Company. Mr. I. Duke Avnet, of Baltimore, Md., for the Union. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petitions duly filed by Local 43, Industrial Union of Marine and Shipbuilding Workers of America, herein called the Union, al- leging that a question affecting commerce had arisen concerning the representation of employees of Bethlehem-Fairfield Shipyard, Incor- porated, Fairfield, Baltimore, Maryland, herein called the Company, the National Labor Relations Board provided for an appropriate hear- ing upon due notice before Earle K. Shawe, Trial Examiner. Said hearing was'held at Baltimore, Maryland, on June 17, 1943. The Com- pany and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The rulings of the Trial Examiner made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. At the hearing, the Company moved to exclude all evidence in sup- port of the Union's petitions and to dismiss each of the petitions on the ground that the employees concerned performed managerial functions and as such were not employees within the meaning of the 51 N. L. R. B., No. 93. 506 BETHLEHEM-FAIRFIELD SHIPYARD, INCORPORATED 507 Act. For the reasons stated in Section N, infra, the motions are hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Bethlehem-Fairfield Shipyard, Incorporated, a Maryland corpo- ration, operates a shipyard at Fairfield, Baltimore, Maryland, where it is engaged in the construction of merchant vessels. All the ship- building facilities are owned by, and all the vessels are being con- structed on a cost plus basis for, the United States Maritime Com- mission. During the year 1942, approximately 90 percent of all ma- terials used at the shipyard was furnished by the Commission, and 50 percent of all materials used was shipped to the shipyard from points outside the State of Maryland. During the same period more than 75 Liberty Ships were constructed by the Company- and deliv- ered to the Commission. II. THE ORGANIZATION INVOLVED Local 43, Industrial Union of Marine. and Shipbuilding Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION The parties stipulated that the Union had requested the Company to recognize it as the exclusive collective bargaining representative of the employees herein involved, and that the Company refused recogni- tion on the grounds that the units sought were inappropriate and the Union did not represent majorities. A statement of a Field Examiner of the Board, introduced in evi- dence at the hearing, as supplemented by a statement of the Trial Examiner made at the hearing, indicates that the Union represents a substantial number of employees in each of the units hereinafter found to be appropriate: I The statements of the Field Examiner and the Trial Examiner are summarized in the following table: No. of em- Cards in Classification of employees Cards sub- ployees in classifiea- mitted classifica- ton tion Safety Inspectors--------------------------------------------- 12 25 7 Inspectors, Ventilation---------------------------------------- 4 7 4 Counters--------------------- -------------------------------- 197 431 141 Counter Leaders and Sr. Counter Leaders-------------------- 2 30 2 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that questions affecting commerce have 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 UNITS On October 17, 1941, the Union won a consent election conducted among the Company's employees, and was certified by the Board's Re- gional -Director as the collective bargaining representative of the Company's production and maintenance employees. In the present proceedings, the Union is petitioning for two additional units of em- ployees of the Company, namely, a unit -of safety inspectors, and a unit of piece-work counters. The Company contends that neither unit is appropriate because the functions performed by the employees in question are managerial and thus such employees are not "employees" within the meaning of the Act. The Board has previously ruled that inspectors 2 and -piece-work counters 3 are employees within the meaning of the Act. Nothing in the record of the instant case convinces us that these previous rulings should be changed or that there is any basis for distinguishing the two groups of employees herein from those in the previous cases. We find, therefore, that the Company's safety inspectors and piece-work counters are employees within the meaning of the Act, entitled to representation by means of collective bargaining. Safety inspectors: At the time of the hearing, the Company em- ployed 40 safety inspectors, 7 of whom were detailed to supervise the installation and maintenance of ventilating equipment. The Com- pany contends that the latter type of inspector should be excluded from a unit of safety inspectors as supervisory employees. Both parties agree to exclude the safety engineer as a supervisor of the safety inspectors. The regular safety inspectors are assigned to particular areas in the shipyards and in the fabricating shops where their function is to reduce and prevent accidents. In this connection they study work- ing conditions, investigate accidents, care for safety equipment, and instruct employees as to means of preventing accidents. Should an employee be performing his work in a hazardous fashion, the safety inspector warns him of the danger and advises a safer method. If the employee rejects the advice, the safety inspector cannot discipline him but usually reports the matter to the head of the particular production or maintenance department and perhaps eventually to his 2 Matter of United Wall Paper Factories, Inc., 49 N. L. R. B. 1423; Matter of McDon- nell Aircraft Corp, 49 N. L. R. B. 897; Matter of Shell Development Company, Inc., 38 N L. R. B 192, 199. 'Matter of Cramp Shipbuilding Company, 46 N. L. R. B. 115; see Matter of Great Lakes Engineering Works, 40 N. L. R. B. 1254, 1257. BETHLEHEM-FAIRFIELD SHIPYARD, INCORPORATED 509 own superior, the safety engineer. However, even the safety engineer cannot compel compliance with a safety order. The inspectors in charge of ventilation undergo the same prelim- inary training as do regular safety inspectors. Their duties differ, however, in that they handle placement and servicing of fans and blowers wherever needed in the plant and in the vessels. To aid them in the manual labor involved in this connection, they are empowered to requisition common laborers from the Labor Department. Ordi- narily each inspector will have from four to eight laborers aiding him. However, assignments of laborers are not permanent, so ac- cordingly there may be a change in personnel from day to day. The safety inspectors cannot hire or discharge such laborers. The ex- tent of their power to discipline is to send an unsatisfactory laborer back to the Labor Department and request a replacement. On the basis of these facts, we find that the safety inspectors in charge of ventilation do not occupy supervisory positions of such nature as to warrant excluding them from the unit. The Company contends further that the two types of safety in- spectors should not be included in one unit because it intends to trans- fer those in charge of ventilation to the electrical department, so that the two types of inspectors will then be under different super- vision rather than under the same supervision as they were at the time of the hearing. While under some circumstances such a separa- tion might be decisive in determining the appropriate unit, it has no such effect in this instance. 'Here the two types of inspectors undergo the same preliminary training and have as their ultimate function the safety and well-being of the production and maintenance em- ployees. They are paid on a salary basis and have the same vaca- tion and sick leave privileges. With these interests in common, we perceive no advantage to be gained by segregating the two types of inspectors into separate bargaining units. A single unit will impose no burden on the Company, even though the inspectors in charge of ventilation are transferred to another department. We find, therefore, that all safety inspectors employed by the Com- pany, including inspectors in charge of ventilation, but excluding safety engineers and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Piece-work counters. The Union petitions for a unit of all piece-, work counters, including counter leaders and senior counter leaders in the counting department, but excluding all departmental clerks, tally clerks, all piece-rate clerks and piece-rate setters, and all supervisors above the rank of senior counter leaders. At the time of the hearing e 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O the Company employed 495 piece-work counters, 39 counter leaders, and 6 senior counter leaders. Since we have ruled that counters are employees entitled to the protection of the Act, the sole remaining dispute between the parties concerns the counter leaders and senior counter leaders whom the Union would include in the counter unit and the Company would exclude. The record indicates that the Company's counters perform the usual duties of piece-work counters; that is, they count and/or measure the amount of work turned out by the individual piece-work produc- tion employee in a given day.4 . They have nothing to do with setting rates of pay. The counter leaders supervise the work of 10 to 15 counters in a specific section of the plant or on a specific job. They have'no power to discipline but they do report back to their senior counter leader and make recommendations which are usually followed. The leaders receive the same hourly rate as the senior counter leaders (who supervise both counters and counter leaders) and meet with them to discuss work problems. Unlike the leaders in the Matter of Bethlehem-Sparrows Point Shipyard, Inc.,' who devoted a majority of their time to counting, the leaders at Fairfield normally do no initial counting but devote their entire time to supervising. Under all the circumstances, we shall exclude the counter leaders from the appropriate unit as supervisory employees.6 The 6 senior counter leaders, being the superiors of the counter leaders, will likewise be excluded. We find that all piece-work counters in the counting department, excluding all departmental clerks, tally clerks,' piece-rate clerks, piece-rate setters, senior counter leaders, counter leaders, and all other supervisory employees with authority to hire, promote, 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 shall 'direct that the questions concerning representation which have arisen be resolved by elections by secret ballot among the em- ployees in the appropriate units who were employed during the pay- roll period immediately preceding the date of our Direction of Elections, subject to the limitations and additions set forth therein. See work description in Matter of'Cramp Shipbuilding Company, 46 N. L. R B, 115. s 49 N. L. It. B. 762. Cf. Matter of Cramp Shipbuilding Company, 46 N L. R. B 115. 7 Tally clerks are classified as counters du the Company 's pay roll , but perform only clerical work and do no counting. The Company agreed with the Union to exclude them from the unit. - BETHLEHEM-FAIRFIELD SHIPYARD, INCORPORATED 511 DIRECTION OF ELECTIONS 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 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Bethlehem-Fair- field Shipyard, Incorporated, Fairfield, Baltimore, Maryland, elec- tions 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 Fifth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article'III, Section 10, of said Rules and Regulations, among the employees in the units 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 any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by I. U. M. S. W. A., C. I. 0., Local 43,8 for the purposes of collective bargaining. 8 The Union expressed a preference at the hearing that its name appear on the ballot as set forth in the Direction of Elections.