Bethlehem Steel Co.

BETHLEHEM STEEL COMPANY, SHIPBUILDING DIV., ETC. 727 lowers' duties because the Employer did not wish these employees to be in the production and maintenance unit. Rather, the indication is that the Employer has been moving over a long period toward the evolution of a dispatch system that will eliminate the job of production follower. Any work formerly performed by production followers which may now be performed by production clerks, specialists, or dis- patchers is at best only a minimal part of the duties of these employees who have always been excluded from the bargaining unit. Accord- ingly, a request for clarification of the certification is not the proper method for adding the excluded classifications to the existing unit. IUE should rather have filed a representation petition seeking an election among the production clerks, specialists, and dispatchers to determine whether they desire to be added to the present unit of pro- duction and maintenance employees 5 Whether such a petition would lie, we do not here decide. We shall, however, deny IUE's request for clarification of the certification. [The Board denied the request of International Union of Electrical, Radio & Machine Workers , AFL-CIO, for clarification of certifica- tion.] 5 United Aircraft Corporation, Pratt & Whitney Aircraft Division, 124 NLRB 392, General Electric Company, 119 NLRB 1233 Bethlehem Steel Company, Shipbuilding Division, San Fran- cisco Yard 1 and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 6, AFL-CIO and Shipyard, Marine Shop Laborers' Union Local 886, International Hod Carriers, Builders and Common La- borers of America, AFL-CIO, Petitioners. Cases Nos. 20-RC- 3817 and 20-RC-3827. May 11, 1960 DECISION AND ORDER Upon separate petitions duly filed under Section 9(c) of the National Labor Relations Act, a consolidated hearing was held on various dates between May 11 and October 21, 1.959, before Shirley N. Bingham and M. CC. Dempster, hearing officers. Thereafter, on Febru- ary 15, 1960, the Board issued an order remanding proceeding to Re- gional Director for further hearing, for the purpose of receiving cer- tain additional evidence. The reopened hearing was held on March 8, 1960, before Hearing Officer M. C. Dempster. The hearing officers' 1 The name of the Employer appears as amended at the hearing 127 NLRB No. 89. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings made at the hearings are free from prejudicial error and are hereby affirmed 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commrece within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. The Employer's San Francisco yard employs approximately 2,500 workers, and performs both new construction and repair work on ships. In 1941, Bay Cities Metal Trades Council (now called Bay Cities Metal Trades and Industrial Union Council, and herein referred to as Council), was certified by the Board as bargaining representative for all production and maintenance employees at the San Francisco yard. Since that time, Council, in conjunction With its constituent locals, has negotiated successive collective-bargaining agreements with the Employer for all employees in the certified unit, with the excep- tion of certain employees severed as separate, craft units at various times after the 1941 certification. Council's latest contract with the Employer was executed October 29, 1959.4 In Case No. 20-RC-3817, the Petitioner, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Help- ers, Local 6, AFL-CIO (herein called Local 6, Boilermakers), seeks to sever from the production and maintenance unit currently repre- sented by Council two separate groups of employees, alleged to con- stitute craft groups within the meaning of the American Potash ' case. These groups, in substance, consist of (1) boilermakers, welders, rig- 2 Evidence improperly rejected at the original hearing was thereafter received at the reopened hearing, pursuant to the Board 's order remanding proceeding. In view of our disposition herein, we find it unnecessary to pass on the Employer's objections to motions of Petitioners to amend their respective petitions a The following labor organizations intervened to protect their contractual interests in other employees of the Employer : United Association of Plumbers and Pipefitters, Local 38, AFL-CIO ; Sheet Metal Workers International Association Local Union Na 104, AFL-CIO ; International Association of Machinists , Local Lodge No. 68 , AFL-CIO ; International Brotherhood of Electrical Workers, Local No. 6, AFL-CIO ; Warehouse Union Local 860, and Brotherhood of Teamsters and Auto Truck Drivers Local 85, both affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America ; Metal Polishers , Buffers, Platers and Helpers International Union, Local No. 128, AFL-CIO ; International Union of Operating Engineers, Local Union No. 3, AFL-CIO ; Shipwrights, Joiners, Boat Builders , Millmen and Loftsmen, Local 1149, International Brotherhood of Carpenters and Joiners of America , AFL-CIO ; and Copper- smiths' International Association , Local 438, AFL-CIO. 4 The petitions herein were timely filed in relation to Council's previous contract with the Employer, which expired on July 1, 1959 . No contract bar is alleged. 5 American Potash and Chemical Corporation, 107 NLRB 1418. BETHLEHEM STEEL COMPANY, SHIPBUILDING DIV., ETC. 729 gers, and various miscellaneous classifications, and (2) loftsmen and shipfitters.6 In Case No. 20-RC-3827, the Petitioner, Shipyard, Marine Shop Laborers' Union Local 886, International Hod Carriers, Builders and Common Laborers of America, AFL-CIO (herein called Local 886, Laborers), seeks to sever a single unit of laborers and firemen, or, in the alternative, a unit composed solely of firemen. Both of the aforementioned Petitioners are members of Council, and have since 1941 participated in Council negotiations for the employees covered by the original Board certification, including those classifica- tions of employees now sought to be severed. It appears that the various locals comprising Council have continued to exercise certain grievance and referral functions in respect to classifications of em- ployees traditionally represented by them, but, as found by the Board in a previous decision involving the same Employer, bargaining has continued jointly, through Council, as certified 7 At the first hearing herein, the Employer sought to show that Peti- tioners, through their respective Internationals and Council, partici- pated in coastwide bargaining negotiations with a group of employers, including Bethlehem, for employees in the classifications sought by Petitioners. Further, the parties stipulated to facts indicating that Petitioners were participating with Council in yardwide negotiations with Bethlehem at the same time their petitions for severance were pending before the Board. Additional evidence on these matters was elicited at the reopened hearing, pursuant to the Board's order. It now appears that on October 19, 1959, following a strike at the Employer's San Francisco shipyard, employees in the classifications sought by Petitioners returned to work, along with other employees in the certified unit. At that time, negotiations between Council and the Employer for a new contract were in progress, and it was agreed between Petitioners and the Employer that, should Petitioners be- come entitled to separate contracts by virtue of the severance pro- ceedings before the Board, such contracts would "contain wages, hours, and conditions of employment identical to those in the Bay Cities Metal Trades and Industrial Unions Council [agree- ment] . . . ." 8 At the same time, by separate letters mailed to the 'At the outset of the hearing, the Petitioner in Case No. 20-RC-3817, Local 6, Boilermakers, sought to represent only the employees in group ( 1). Employees in group ( 2) were sought by a sister local, in Case No. 20-RC-3847, originally consolidated with the other cases herein for purposes of hearing and decision. However, during the course of the hearing, the petition in Case No . 20-RC-3847 was severed and withdrawn, and Local 6 amended its original unit request to encompass the employees in group (2). Local 6 subsequently amended its petition again, apparently at the request of the Regional Director, to seek the group (2) employees in a separate unit. I Bethlehem Pacific Coast Steel Corp., Shipbuilding Division, San Francisco Yard, 117 NLRB 579, footnote 9. e Certain grievance procedures and other "local union" provisions were excepted. These apparently were matters traditionally handled by the constituent locals within the frame- work of Council bargaining under the Board certification. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer on October 15, 1959, Petitioners endeavored to preserve their "rights" under their pending representation petitions by stating ,that they would not be bound by the unitwide agreement then being negotiated by Council." Thereafter, representatives of the Employer and Council met, and on.October 29, 1959, executed a new collective-bargaining agreement covering employees in the certified unitl° This contract, like previous agreements between Council and the Employer, recognized Council as "the sole bargaining agent" for all employees in the classifications contained in schedule "A" of the agreement, which schedule appears to include all classifications herein sought by Petitioners, such as boilermakers, welders, riggers, shipfitters, loftsmen, laborers, and fire- men. Schedule "A" also sets forth wage rates for each of these classifications. . Most of the provisions of the October 29, 1959, contract had pre- viously been negotiated at coastwide conferences between the Pacific Coast Shipbuilders- Association, including the Employer, and the Pacific Coast District Metal Trades Council, including Council." The Employer was not a party to the Master Agreement negotiated at these coastwide conferences, but agreed in advance to adopt all pro- visions relating to cost items in any later contract with Council, as well as other items common to previous Master Agreements and Council-Employer contracts. The coastwide conferences were held on various dates between June 15 and October 9, 1959, and among Council's representatives were A. F. Bartholomew of Petitioner Local 886, Laborers, and E. Rainbow of Petitioner Local 6, Boilermakers. The record discloses that both Bartholomew and Rainbow actively participated in the coastwide negotiations. We note that the respective petitions herein were filed on April 9 and 22, 1959. Yet from Julie 5 to October 9, 1959, Petitioners' representatives actively participated with Council in coastwide con- ferences determining major cost and other items to be included in Council's later agreement with the Employer. Thereafter, the agree- ment executed between Council and the Employer specifically cov- ered all employees in the classifications sought by Petitioners, and it was agreed that terms of Council's agreement would be adopted by Petitioners in the event separate units were later severed by the Board. It is thus evident from the record that, despite their pending repre- sentation petitions before the Board, and their purported reservation 9 This reservation appears to conflict with the aforesaid agreement between Petitioners and the Employer to adopt the identical terms of Council 's agreement. The parties stipulated at the reopened hearing that Petitioners ' reservations in their October 15 letters were unilateral , and that the actual agreement between the parties was as stated heretofore. w This contract was signed for Council by E. Rainbow , who was both president of Council and representative of Petitioner Local 6, Boilermakers. n The Employer had not previously participated in such coastwide conferences since 1948. FASHION MILLS, INC., ETC. 731 of rights'12 Petitioners have for all practical purposes continued to bargain jointly as members of Council in the overall, certified unit. In view of the above, we find that Petitioners have taken a position entirely inconsistent with their attempts to establish that questions concerning representation exist with respect to employees here sought to be severed.13 We further find that, under these circumstances, it will not effectuate the policies of the Act to permit the Petitioners to proceed with their petitions. Accordingly, we shall dismiss the peti- tions herein. We find, therefore, that no questions affecting commerce exist con- cerning the representation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. [The Board dismissed the petitions.] "We deem Petitioners' statements purporting to reserve their rights in Board pro- ceedings to be ineffectual, in view of Petitioners' continued participation in, and acceptance of, eouncilwide bargaining. 71 See American Radiator and Standard Sanitary Corporation (Louisville Works), 119 NLRB 204; Hollingsworth & Whitney Division of Scott Paper Company, 115 NLRB 15. It does not appear that the Employer has raised any question of majority status as affecting these employees ; there is an indication that Petitioners seek by virtue of this proceeding to clarify certain work assignments currently in dispute. Fashion Mills, Inc.; Goldsmith, Inc.; M-N-L Co.; Goldbar, Inc.; Glass Corner, Inc.; Al Schecter d/b/a Algert Jewelry Co.; Faber Bakery, Inc.; Klimat Master Aluminum Products Co., Inc. and Retail Store Employees Union Local No. 1099, Retail Clerks International Association, AFL-CIO, Petitioner. Case No. 9-RC-38d0. May 13, 1960 DECISION, ORDER, AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Mark Fox, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The eight enterprises involved herein operate retail self-service concessions in a supermarket called "Fashion Mills" in Hamilton, Ohio. The supermarket is leased by Fashion Mills, Inc., and sub leased to the other enterprises.' Goldsmith sells ladies' and childrens' 1 Hereinafter called Fashion Mills, Goldsmith, M-N-L, Goldbar, Glass Corner, Algert Faber's and%Klimat respeetivl'Iy 127 NLRB No. 90.