United Shipyards, Inc., and Bethlehem Shipbuilding Corporation, Ltd.

In the Matter Of UNITED SHIPYARDS , INC., AND BETHLEHEM SHIP- BUILDING CORPORATION , LTD. and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA Case No. B-567.-Decided August 2, 1939 Shipbuilding and Repairing Industry-Investigation of Representatives :, stipu- lation as to existence of question concerning representation-Units Appropriate for Collective Bargaining: stipulation as to-Determination of Representatives: stipulation that pay rolls and evidences of union membership be submitted to accountants-Certification: issued on report of accountants pursuant to stipula- tion-Order: petition for investigation of representatives dismissed as to one of two corporations named in petition. Mr. Richard J. Hickey, Mr. Martin I. Rose, and Mr. Millard L. Midonick, for the Board. . Cravath, de Gersdorff, Swaine ct Wood, by Mr. Chester A. McLain, Mr. Albert H. Connelly, Mr. Bruce Bromley, and Mr. John A. Morse, of New York City, for Bethlehem. Col. Kenneth Gardner, Mr. Arthur 0. Louis, and Mr. J. Ward O'Neill, of New York City, for United Shipyards. Boudin, Cohn ct Glickstein, by Mr. H. N. Glickstein, of New York City, Mr. Samuel L. Rothbard, by Mr. Anthony J. Nisivoccio, of Newark, N. J., Mr. Frank Kelley, of Hoboken, N. J., and Mr. Charles George, of Brooklyn, N.Y.-, .for the Industrial Union. Mr. A. M. Fisch, by Mr. Sidney Schiffman, of New York City, and Mr. Alfred J. Klippberg, of New York City, for the Council. Mr. William A. Crane, of Washington, D. C., for the AmericaR Federation of Labor, Metal Trades Department. Mr. Fred Sinay, of New York City, for the International Brother- hood of Boilermakers, Iron Shipbuilders, Welders & Helpers of America. Mr. Alfred J. Klippberg, of Washington, D. C., for the Interna- tional Association of Machinists. Mr. William L. Williams, of New York City, for Local 277, Inter- national Brotherhood of Electrical Workers. Mr. Walter Patterson, of Hoboken, N. J., for the Iron Steamship Builders, Port of New York and Vicinity. Mr. William B. Simonson, Staten Island, N. Y., for the Staten Island Marine Workers Protective Association. Mr. Walter T. Nolte, of counsel to the Board. 14 N. L. R. B., No. 9. 169 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, SUPPLEMENTAL DECISION CERTIFICATION OF REPRESENTATIVES AND ORDER STATEMENT OF THE CASE On March 2, 1938, the National Labor Relations Board, herein, called the Board, issued a Decision and Direction of Election' in the above-numbered case. On March 22, 1938, the Board issued an Amendment to the Direction of Election.2 The Direction of Elec- tion, as amended, provided that an election by secret ballot be held as soon as convenient and beginning as promptly as practicable after the date of the Direction among the employees of United Shipyards,, Inc., herein called United Shipyards, employed in its three plants, namely the Crane, Morse, and Fletcher plants, in any pay-roll period in either the month of May or the month of September 1937, exclud- ing salaried employees and executives or supervisors; who do not work with tools; foremen; timekeepers; draftsmen; watchmen; em- ployees of the engineering departmeht, including technical employees in that department; janitors and janitresses; office and clerical help; snappers who are paid on a salaried basis; and all technical em- ployees working on a salary, to determine whether such employees, in the three said plants desired to be represented by Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Committee for Industrial Organization, herein called the Indus- trial Union, or by the American Federation-of Labor, for the pur- poses of collective bargaining, or by neither. On July 6, 1938, the Board issued an Order Reopening the Record and an Order Permitting the Filing of an Amended Petition With the Board, both upon request of the Industrial Union and for the- purpose, as alleged, of joining Bethlehem Shipbuilding Corpora- tion, Ltd., herein called Bethlehem, as a co-respondent in the pro- ceeding by reason of the acquisition by Bethlehem of the property and assets of United Shipyards on or about June 2, 1938. Pursuant to the above orders, the Industrial Union filed with the Board a second amended petition, dated June 21, 1938, alleging that a question affecting commerce had arisen concerning the representa- tion of employees of United Shipyards and Bethlehem and request- ing an investigation and certification of representatives pursuant to, Section 9 (c) of the National Labor Relations Act, 49 Stat. 449',. 1 5 N. L. R. B. 742. 2 6 N. L. R. B. 126. UNITED SHIPYARDS, INCORPORATED 171 herein called the Act. On July 6, 1938, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and'Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director for the Second Region (New York City) to conduct it and to provide for an appropriate hearing upon due notice. On July 8, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon . United Shipyards, upon Bethlehem, upon the Industrial Union, and upon the Marine Workers Metal Trades District Council, Port of New York and Vicinity, herein called the Council, and the International Longshoremen's As- sociation, both named in the second amended petition as labor organ- izations claiming to represent employees directly affected by the investigation. On July 16, 1938, Bethlehem filed with the Board a motion to dismiss the second amended petition and to vacate the orders of the Board issued July 6, 1938, permitting the filing of. the second amended petition, reopening the record, and directing investigation and hearing. The grounds of the motions were (1) that the orders of the Board had been issued without notice to Bethlehem; (2) that Bethlehem was not a party to prior proceedings in the case; and (3) that Bethlehem was not a' successor in interest to United Shipyards with respect to such proceedings. Pursuant to notice, a. hearing was held on July 15 and 16, 1938, at New York City, before Elliott L. Biskind, the Trial Examiner duly designated by the Board. The Board, United Shipyards, Bethlehem, the Industrial Union, the Council, and the American Federation of Labor were represented and participated in the hearing. On August 13, 1938, the Board, finding the record inadequate for the determination of the issues, and acting pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, ordered the record reopened for the introduction of further evidence and authorized the Regional Direc- tor to issue notice of further hearing. On August 23, 1938, the Regional Director issued a notice of hear- ing. Pursuant to such notice, as subsequently amended, a hearing was held on September 15, 16, 19, and 24, 1938, at New York City, before ' James C. Paradise, the Trial Examiner duly designated by the Board. The Board, United Shipyards, Bethlehem, the Indus- trial Union, the Council, the American Federation of Labor, and the Staten Island Marine Workers Protective Association were rep- resented and participated in the hearing. At the conclusion of the hearings, United Shipyards moved to dismiss the proceeding as to it. The Trial Examiner reserved ruling on the motion. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the course of the final hearing , on September 24, 1938, Bethlehem, the Industrial Union, and the American Federation of Labor entered into a stipulation in settlement of the issues of the case. The stipulation provides as follows : IT is AGREED by the Bethlehem Shipbuilding Corporation, the Industrial Union of Marine & Shipbuilding Workers of America and the American Federation of Labor as follows : 1. The appropriate units for the purpose of collective bar- gaining herein shall consist of all employees of the company at its Crane, Morse and Fletcher Plants which are considered as separate units for the purposes of this stipulation , excluding all salaried employees and executives or supervisors who do not work with tools , foremen, timekeepers, draftsmen , watchmen, employees of the engineering department , including technical employees in that department, janitors and janitresses , office. and clerical employees, snappers who are paid on a salary basis, and all technical employees working on salary. 2. For the purposes of this stipulation alone and without prejudice to any other proceedings to, which respondent, Beth- lehem Shipbuilding Corporation , Ltd. is or may be a party, respondent, Bethlehem Shipbuilding Corporation , Ltd. agrees that its operations at each of the three plants in question affect the flow of commerce among the various states and with foreign countries, and that a question concerning representation affect- ing commerce within the meaning of the Act exists at each of said plants. 3. On or before October 6th , 1938, the American Federation of Labor and the Industrial Union of Marine & Shipbuilding Workers of America shall submit their respective evidences' of membership to the accounting firm of Lybrand Ross Bros. & Montgomery, of New York City. This evidence shall consist of application cards, pledge cards, or records of dues payments and shall be limited to the period commencing June 1, 1936 and ending June 30, 1938 . For the purposes of this stipulation the only acceptable record of dues payments shall be the original dues cards issued to the men or the periodic dues payment re- ports made by the respective local organizations to their national organization . The Board shall deliver to said accounting firm Board's Exhibits 13A, B and C in this case which contain a list of the employees in each of said appropriate units in the months of May, 1937 and June, 1938. 4. After the receipt of said evidence of membership and said payroll lists, said accounting firm shall render a report stating (a) the total number of employees on the payroll in each of the UNITED SHIPYARDS, INCORPORATED 173ss• appropriate units in May, 1937 and June, 1938, after eliminating-. duplications; (b) the total number of members of each of the unions among the employees in the respective appropriate units.. For this purpose, an individual shall be deemed a member of the organization to which he last paid dues or for which he last.. signed a pledge or application card, whichever date is later. An individual who on the same day either signed cards for both or- ganizations, or signed a card in one and paid dues in the other- shall not be considered a member of either organization. 5. The original of the report of said accounting firm shall be- filed with the Board and shall become part of the record in thi& case, and copies thereof shall be served on the representatives of each of the interested parties hereto and the Trial Examiner. 6. The evidence of membership submitted.by the respective unions shall be kept in the strictest confidence by said accounting; firm, and shall be returned by it to the respective unions as soon,, as the membership claims of the unions have been checked as-. above provided. 7. The fee for the services of said accounting firm shall be paid by the respondent, Bethlehem Shipbuilding Corporation. 8. The report of said accounting firm shall be binding upon-, the parties hereto and shall be conclusive of the membership., claims of the respective unions and shall be used by the Boar& as the basis for certifying the union, if any, shown by said re- port as representing a majority of the employees in the respective appropriate units. 9. In the event that the Board should certify either of the. unions as the exclusive representative for collective bargaining- of the employees in one or more of the appropriate units,. Bethlehem Shipbuilding Corporation agrees to recognize the. union or unions so certified as such exclusive representative for collective bargaining. 10. In the, event that in any unit the figures certified by the accountants show that neither union has a majority of 'the em- ployees in that unit, this stipulation shall not apply to such unit; and in respect of such unit the Board shall proceed as though this stipulation had not been made. 11. The respective unions agree that if an election should be ordered by the Board in any of the appropriate units, that the employees eligible to vote in said election shall be those specified in paragraph 1 of this stipulation whose names appear on the, payroll of the company in the months of May, 1937 and June, 1938, and that the ballot in any such election shall afford the employees the opportunity to vote for the Industrial Union of 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marine & Shipbuilding Workers of America, the American Federation of Labor, or neither. Upon the foregoing stipulation and the entire record in the case, the Board makes the following : SUPPLEMENTAL FINDINGS OF FACT I. THE BUSINESS OF BETHLEHEM Bethlehem Shipbuilding Corporation, Ltd., a Delaware corporation organized in 1917, has, since June 2, 1938, owned and operated four plants located in the Port of New York formerly owned and operated by United Shipyards, Inc. Only three of the four plants, namely the Crane or Brooklyn 27th Street plant and the Morse or Brooklyn 56th Street plant, both located in Brooklyn, New York, and the Fletcher or Hoboken plant located in Hoboken, New Jersey, are involved in the instant proceeding. At these three plants Bethlehem engages in the repair, reconditioning, and reconstruction of ships and other floating equipment and in the construction of small craft. Included among the ships repaired at each of the three plants are vessels capable of foreign and coastwise ocean travel. In addition to the work done at the plants, Bethlehem on occasion sends out crews from the plants to repair ships docked at wharves and piers throughout the Port of New York. It also manufactures at each of the plants machinery and parts which are subsequently sold to other concerns similarly engaged rather than used by Bethlehem in the course of its own operations. A 'substantial number of all vessels repaired at the Crane and Fletcher plants from the date of their acquisition by Bethlehem, June '2, 1938, to August 31, 1938, were vessels normally engaged in coast- wise and foreign commerce. Work at the Morse plant during the same period was confined almost entirely to the repairing of two vessels owned by the United States Maritime Commission, both long out of service but formerly engaged as ocean-going passenger vessels. Total billings during the period above referred to amounted to $925,000. We find that the repairing operations of Bethlehem are performed upon instrumentalities of interstate and foreign commerce and that such operations have a close, intimate, and substantial relation to trade, traffic, commerce, and transportation among the several States and with foreign countries. II. THE ORGANIZATIONS INVOLVED Industrial Union of Marine and Shipbuilding Workers of America is a labor organization affiliated with the Committee for Industrial UNITED SHIPYARDS, INCORPORATED 175 Organization, admitting to its membership the production and main- tenance workers of Bethlehem, excluding salaried employees, such as- administrative employees and supervisory employees who do not work with tools, and timekeepers, office and clerical workers, draftsmen,, janitors, and employees in the engineering and technical departments. Marine Workers Metal Trades District Council, Port of New York- and Vicinity, is a labor organization affiliated with the American Federation of Labor. Its affiliated locals admit to membership all employees of Bethlehem, excluding executives and supervisory em- ployees and office and clerical workers. III. THE QUESTION CONCERNING REPRESENTATION In accordance with the terms of the stipulation, Nye find that a question has arisen concerning the representation of employees of' Bethlehem at its Crane, Morse, and Fletcher plants in the Port of New York. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has: arisen, occurring in connection with the operations of Bethlehem described in Section I above, has a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNITS In accordance with the terms of the stipulation, we find that all employees of Bethlehem at its Crane, Morse, and Fletcher plants, re- spectively, excluding all salaried employees and executives or super- visors who do not work with tools, foremen, timekeepers, draftsmen, watchmen, employees of the engineering department, including tech- nical employees in that department, janitors and janitresses, office and clerical employees, snappers who are paid on a salary basis, and all technical employees working on salary, constitute three separate units; appropriate for the purposes of collective bargaining and that such units will insure to the said employees the full benefit of their right to self-organization and collective bargaining and will otherwise .effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Pursuant to the stipulation, the accountants filed a report, dated December 22, 1938, copies of which were duly served upon the parties. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The report was ambiguous in certain particulars and raised a question as to whether or not the terms of the stipulation had been strictly adhered to in its preparation. The Board, therefore, acting through the Regional Director, asked the accountants to submit a supplemental report, detailing the procedure followed in the preparation of the original report. Pursuant to such request, the accountants filed a :supplemental report, dated April 6, 1939. With respect to the representation of employees, the accountants reported as follows : 'Total names allocated to : Industrial Union of Marine & Ship- building Workers of America_______ The American Federation of Labor____ Names not identified with records of either union and therefore not allo- cated ----------------------------- Crane Yard Morse Yard Fletcher Yard 680 940 736 67 177 93 336 680 526 1,083 1,797 1,355 The stipulation provided for the submission of membership appli- cation cards and dues records by the unions and for the crediting of individuals to the union in which they had last participated, either by the signing of application cards or payment of dues. The original report of the accountants indicated, however, that no dues records had been submitted by the American Federation of Labor. The procedure adopted by the accountants as a result of this failure is indicated by the following statement in their supplemental report: The failure of the American Federation of Labor to submit dues records required us to rely upon the application cards sub- mitted by both unions. We find that such procedure, although representing a deviation from the provisions of the stipulation, was without prejudice to the Ameri- ,can Federation of Labor. The American Federation of Labor filed letters of protest against 'both the original and the supplemental reports of the accountants. We 'have considered such protests and.find that they raise no substantial -or material issues. We find that the Industrial Union has been designated and selected by a majority of the employees in each of the three above-described units as their representative for the purposes of collective bargaining and that it is, therefore, the exclusive representative of all the employ- ees in each of such units for the purposes of collective bargaining, and we will so certify. Totals ----------------------------- UNITED SHIPYARDS, INCORPORATED 177 Upon the basis of the above stipulation and supplemental findings .of fact and upon the entire record in the case, the Board makes the .following : SUPPLEMENTAL CONCLUSIONS OF LAW ;, 1. Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Committee for Industrial Organization, and Marine Workers Metal Trades District Council, Port of New York and Vicinity, affiliated with the American Federation of Labor, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. A question affecting commerce has arisen concerning the repre- sentation of employees of Bethlehem Shipbuilding Corporation, Ltd., at its Crane, Morse, and Fletcher plants in the Port of New York, with- in the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 3. All employees of Bethlehem Shipbuilding Corporation, Ltd., at its Crane, Morse, and Fletcher plants, respectively, excluding all sal- aried employees and executives or supervisors who do not work with tools, foremen, timekeepers, draftsmen, watchmen, employees of the engineering department, including technical employees in that de- partment, janitors and janitresses, office and clerical employees, snap- pers who are paid on a salary basis, and all technical employees work- ing on salary, constitute three separate units appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. Industrial Union of Marine and Shipbuilding Workers of Amer- ica is the exclusive representative of all employees within each of the three above-described units for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. There is no question affecting commerce concerning. the represen- tation of employees of United Shipyards, Inc., within the meaning of Section, 9 (c) and Section 2 (6) and (7) of the Act. CERTIFICATION OF REPRESENTATIVES Upon the basis of the above stipulation, supplemental findings of fact, and supplemental conclusions of law, and upon the entire record in the case, and 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 8, of National Labor Relations Board Rules and Regulations-Series 2, IT Is HEREBY CERTIFIED that Industrial Union of Marine and Ship- building Workers of America has been designated and selected by the majority of the employees of Bethlehem Shipbuilding Corporation, Ltd., employed as of May 1937 and June 1938 at its Crane, Morse, and Fletcher plants, respectively, excluding all salaried employees and 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD executives or supervisors who do not work with tools, foremen, time- keepers, draftsmen, watchmen, employees of the engineering depart- ment, including technical employees in that department, janitors and. janitresses, office and clerical employees, snappers who are paid on a salary basis, and all technical employees working on a salary, as their representative for the purposes of collective bargaining, and that, pur- suant to Section 9 (a) of the National Labor Relations Act, Industrial. Union of Marine and Shipbuilding Workers of America is the exclu- sive representative of all such employees at each of said plants, for the purposes of collective bargaining in respect to rates of pay, wages,. hours of employment, and other conditions of employment. ORDER Upon the basis of the above supplemental findings of fact and sup- plemental conclusions of law, and upon the entire record in the case,, and 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, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, IT IS HEREBY ORDERED that the second amended petition for investiga- tion and certification of representatives of employees' of United Ship- yards, Inc., and Bethlehem Shipbuilding Corporation, Ltd., filed by Industrial Union of Marine and Shipbuilding Workers of America,, be, and it hereby is, dismissed in so far as it relates to United Ship- yards, Inc. MR. WILLIAM M. LEISERSON took no part in the consideration of the. above Supplemental Decision, Certification of Representatives, and Order.