Avondale Shipyards, Inc.

AVONDALE SHIPYARDS, INC. 73 Avondale Shipyards, Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, Petitioner. Case 15-RC-3422 January 9, 1969 DECISION, ORDER, AND AMENDED DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 22, 1966, the Regional Director for Region 15, following hearing, issued a Decision and Direction of Election in a unit comprising production and maintenance employees of the Employer at its Avondale, Harvey, and Bayou Black Divisions. Thereafter, a Request for Review was filed by the Employer, which was subsequently denied by the Board. On January 26, 1967, an election was conducted. On February 14, 1967, the Regional Director issued a Supplemental Decision and Direction of Second Election, which set aside the election because of meritorious objections filed by the Petitioner. The second election has been delayed because of, inter alia, the Employer's refusal to furnish an Excelsior list of eligible voters. On June 7, 1968, the Employer filed with the Regional Director a petition requesting a reopening of the record to take evidence as to its newly formed Industrial and Standard Paint Divisions, which it asserted must necessarily be included in any unit found appropriate. Thereafter, the Petitioner filed a statement in opposition. On July 5, 1968, the Regional Director issued an order reopening the record, and directing a further hearing to determine whether the unit should be redefined, as requested by the Employer. On August 12, 1968, the Employer filed with the Regional Director a petition to vacate his direction of a second election and to certify the result of the first election.' Thereafter, the Petitioner filed an opposition to the Employer's petition.2 Pursuant to the order of July 5, 1968, a hearing was held before Hearing Officer R. Kelly Baird. At this hearing evidence was adduced as to the Employer's Industrial and Paint Divisions, and also as to a newly created Steel Sales Division. At the conclusion of the hearing the Regional Director transferred the matter to the National Labor Relations Board for decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 'This petition was referred to the Regional Director by the Hearing Officer, but was not acted upon by him. By virtue of the subsequent transferral of the instant proceedings to the Board, we shall pass on it and deny it for reasons discussed, infra 'The Petitioner, in its brief to the Board, renews such opposition and objects to redefinition of the unit We find no merit therein for reasons discussed, infra. National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer and the Petitioner have filed briefs which have been duly considered. Upon the entire record in this case, the Board finds: 1. The Petitioner moves that the Board dismiss the reopened proceeding and direct the holding of a second election in the unit as originally described, on the principal ground that by setting up new divisions the Employer could indefinitely delay an election. The motion is denied. There is nothing in the record to show that this was the purpose for the creation of the new divisions. Moreover, it would be an exercise in futility to conduct an election in what was no longer an appropriate unit, and we see no purpose in perpetuating the description of a unit if, as the Employer contends, circumstances have rendered that description obsolete. 2. The Employer moves that we reverse the Regional Director's Supplemental Decision of February 14, 1967, and certify the results of the first election, contending chiefly that a new showing of interest should be required before direction of a second election, because of an expansion of the unit. However, it has not been the Board's practice to require a new showing of interest in the case of expanding units.' As the first election has been set aside based on the Employer's conduct, a second election must in any event be held. We are administratively satisfied Petitioner's showing is adequate. Accordingly, the Employer's motion is hereby denied. 3. The Employer is a Louisiana corporation engaged primarily in the construction and repair of ocean-going and inland-waterway vessels, off-shore drilling rigs, and other sea-going vessels. The scope of the original unit found appropriate herein included various plants of the Employer engaged in shipbuilding , ranging from 2 to 80 miles apart, in the state of Louisiana. The Employer contends that the above unit is no longer appropriate because of its creation of three additional divisions since the appropriate unit was determined. Because these divisions allegedly have working conditions similar to those in the included plants, and are subject to the same centralized personnel and operating policies and have the same degree of functional integration, the Employer claims they are necessarily a part of the appropriate unit, and asks that the description be changed to include them. The Petitioner, while objecting to the reopening of the record, now agrees that one of the additional divisions, the Industrial Division, should be included in the unit description. However, the Petitioner does 'See, e.g., Trenton Foods , 101 NLRB 1769. 174 NLRB No. 14 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not agree that the other two are necessarily a part of the unit found appropriate, contending that nothing corresponding to the Steel Sales Division was included in the original unit description, and, further, that the Standard Paint Division is essentially not a part of the shipbuilding operations of the Employer and is operated autonomously from the other divisions. a. The Industrial Division: This division was created on June 1, 1968, from two departments of the Employer's Avondale and Harvey divisions which were included in the appropriate unit. These departments were moved to their present location, some 2 miles from the Harvey Division and 8 miles from the Avondale Division, around January 1, 1968. It appears that while this division performs work for outside customers not previously performed, most of its work, involving the manufacture of components for ships constructed by the Employer, is substantially the same as that performed in the original unit. The parties stipulated that functions performed by this division were formerly performed by employees in classifications encompassed in the original unit description, and that one half of this division's employee complement were formerly employed in other departments of the Employer. Accordingly, as the work of this division appears to be substantially a relocation of work in the original unit, we shall accept the stipulation of the parties to include this division.4 b. The Steel Sales Division:5 This division, like the Industrial Division, involves the transfer of work and personnel from a unit department of the Avondale Division, in this case the work of supplying steel for use in the Employer's shipbuilding operations, and an organizational change to the status of a division, on August 1, 1968. Such work is being performed at the same location as the work performed by the Industrial Division. It appears that all 18 individuals employed by the Steel Sales Division at the time of the hearing had formerly performed comparable work for the Avondale division, and had been eligible to vote in the first election. As the operations of this division are substantially a relocation of functions performed in the original unit, utilizing the same employees, we shall include the Steel Sales Division in the unit description. c. The Standard Paint Division: In September 1967, the Employer purchased the Standard Paint s-_-- 'We shall leave the dispute over the unit placement of Lerille, an employee in the marine closure department of the Industrial Division, to challenged ballot, as the record is not sufficiently complete to determine whether he is a managerial employee who should be excluded from the unit, as contended by the Petitioner. 'The Petitioner objects to consideration of the status of this division because the notice of reopened hearing did not mention it. The Petitioner was afforded full opportunity at the hearing to litigate the status of this division , and did not request a postponement on the ground of surprise, and Varnish Company, Inc., a separate unrelated corporation. This corporation was engaged in the manufacture and sale of industrial and house paints, and was owned principally by Jack B. Valley. Prior to its purchase by the Employer, Standard Paint had sold 20 percent of its paint to the Employer. Thereafter, the Employer continued the Company with the same complement of employees and management, at the same location, about 1 mile from the Harvey Division. Valley was made vice president and general manager of the newly formed Standard Paint Division on July 1, 1968. This management, unlike other division managements which do no hiring, exercises substantially the same control over hiring of its own employees as it did before it sold the business to the Employer. This division is also somewhat less functionally integrated than the other divisions, in that, unlike them, billing and collecting from their own customers is done by Standard Paint Division personnel rather than Employer's headquarters personnel. There have been no transfers of employees between this division and other divisions. Moreover, the hours of work of employees of this division are different from the hours of work of employees in other divisions. And, unlike other divisions, at least 65 percent of the Paint Divisions's products are sold to outside customers. Under the foregoing circumstances, we do not believe that the employees of the Standard Paint Division necessarily have a community of interest with the employees in the appropriate unit, and we shall not include them. ORDER It is hereby ordered that the unit found by the Regional Director to be appropriate be, and hereby is, redescribed to read as follows: All production and maintenance employees of the Employer at its Avondale, Harvey, Bayou Black, Industrial and Steel Sales divisions, including the Avoncraft division, but excluding the Standard Paint division, office clerical employees, guards, professional employees, and supervisors, as defined in the Act. [Amended Direction of Second Election' omitted from publication.] accordingly, we find that the Petitioner was not prejudiced by the failure to give advance notice Moreover, technical rules of pleading need not be followed in a representation proceeding since it is non-adversary in nature. Accordingly, we find no merit in Petitioner's objection. 'An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 15 within 7 days after the date of issuance of the Notice of Second Election The Regional Director shall make the list available to all the parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236